KB 
G74- 


UC-NRLF 

B   n   17b   lib 

THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 


GIFT  OF 

Oze  Van  Wyck 


\ 


^ 


THE  CODE  OF  PROCEDURE: 


OB 


TILE  NEW  AND  THE  OLD  MODES  OF  PROCEEDING 
< 


COMPARED; 


SHOWING 


THE  NECESSITY  OF  RESTORING  THE  FORMS  OF 

ACTIONS  AND  PLEADINGS  IN  CASES 

VT  COMMON  LAW. 


OO^TTZFLIG-IKCT    SECURED. 


BUFFALO: 

PRINTING    HOl)\SE    OF    MATTHEWS    &    WARREN, 
Office,  of  tike  Buffalo  Commercial  Advertiser. 


v 


\ 


0    m 


THE  CODE  OE  PROCEDURE: 


■ 

OR 


TEE  NEW  AND  THE  OLD  MODES  OF  PROCEEDING 
COMPARED; 


SHOWING 


THE  NECESSITY  OF  RESTORING  THE  FORMS  OF 

ACTIONS  AND  PLEADINGS  IN  CASES 

AT  COMMON  LAW. 


BUFFALO,   N.  Y. : 
PRINTING  HOUSE  OF  MATTHEWS  &  WARREN, 

Office  of  the  Buffalo  Commercial  Advertiser. 
1867. 


» 


K6<?0 


Buffalo,  May  4th,  1867. 
Hon.  Joseph  G.  Masten: 
Dear  Sir: 

This  Treatise  was,  by  the  kindness  of  the  propri- 
etors of  the  "  Buffalo  Commeecial  Advertiser,"  first  published 
in  their  paper  in  numbers.  I  wrote  it  with  the  hope  of  at- 
tracting some  attention  to  what  I  believe  the  chief  cause  of  the 
unfortunate  condition  of  the  business  of  litigation  in  our  com- 
monwealth (of  which  all  seem  to  be  aware)  —  that  we  may  avail 
ourselves  of  the  opportunity  of  the  Constitutional  Convention  to 
strive  to  remedy  the  evil.  I  wrote  it,  too,  not  only  with  your 
knowledge,  but  by  reason  of  an  impulse  and  encouragement  re- 
ceived of  you.  As  a  Citizen,  a  Judge,  and  a  Member  of  the  Con- 
vention, you  are  occupying  a  position  which  enables  you  to  effect 
a  great  deal  in  behalf  of  the  object  I  have  in  view.  It  is  with 
pleasure,  therefore,  that,  through  you,  I  am  allowed  to  call  the 
attention  of  the  public  to  the  merits  of  this  important  subject. 
Your  friend  and  obedH  servant, 

WM.  H.  GREENE. 


907 


THE  CODE  OF  PROCEDURE. 


ORIGIN  OF  THE  CODE. 


The  constitutional  origin  of  the  Code  of  Procedure,  appears  in 
section  24  of  article  6  of  the  Constitution  of  1846  :  "  The  Legisla- 
"  ture  at  its  first  session  after  the  adoption  of  this  Constitution, 
11  shall  provide  for  the  appointment  of  three  commissioners,  whose 
"  duty  it  shall  be  to  revise,  reform,  simplify  and  abridge  the  rules 
"  and  practice,  pleadings,  forms  and  proceedings  of  the  Courts  of 
"  Record  of  this  State,  and  to  report  thereon  to  the  Legislature,  sub- 
uject  to  their  adoption  and  modification  from  time  to  time?'' 

Its  legislative  origin  is  found  in  section  8  of  chapter  59  of  the 
laws  of  1847  :  "  In  pursuance  of  the  twenty-fourth  section  of  arti- 
"  cle  sixth  of  the  Constitution,  Arphraxed  Loomis,  etc.,  are  hereby 
"  appointed  commissioners,  to  be  styled  Commissioners  on  Practice 
"  and  Pleadings,  to  perform  the  duties  there  specified ;  and  it  shall 
"  be  the  duty  of  the  said  commissioners  to  provide  for  the  abolition 
"  of  the  present  forms  of  actions  and  pleadings  in  cases  at  common 
"  law ;  for  a  uniform  course  of  proceedings  in  all  cases,  whether  of 
"  legal  or  equitable  cognizance  ;  and  for  the  abandonment  of  all 
"  Latin  and  foreign  tongues,  so  far  as  the  same  shall  by  them  be 
"  deemed  practicable,  and  of  every  form  and  proceeding  not  neces- 
"  sary  to  ascertain  or  preserve  the  rights  of  the  parties." 

No  one,  we  believe,  can  well  help  seeing  that  the  duty  prescribed 
to  these  commissioners  by  the  act  of  the  Legislature,  is  not  identical 
with  the  duty  the  Constitution  had  prescribed  for  them.  Yet  we 
owe  the  Code  of  Procedure  to  this  stretch  of  the  power  of  the  Le- 
gislature, rather  than  to  the  Constitution,  or  to  any  ideas  contained 
in  it,  either  expressed  or  implied.  The  Constitution  means  no  such 
thing  as  this  revolutionary  or  exterminating  project  of  the  Legisla- 
ture.   It  is  repugnant  to  the  manner,  both  in  letter  as  well  as  spirit, 


8  THE    CODE   OF   PROCEDURE. 

in  which  those  who  framed  the  Constitution  meant  to  deal  with  the 
methods  of  proceeding  in  our  Courts  of  Record.  Now  these  words 
of  this  twenty-fourth  section,  which  the  men  who  passed  it  used  to 
express  their  meaning  and  the  result  of  their  deliberations,  mean  to 
state,  and  do  state,  and  direct,  the  duty  of  these  commissioners.  It 
is  "to  revise,  reform,  simplify  and  abridge  the  rules  of  practice  and 
"  pleadings,  forms  and  proceedings  of  the  Courts  of  Record  of  the 
"  State"  The  Constitution  refers  to  what  was  well  known.  What 
these  Courts  of  Record  were,  the  men,  who  framed  it,  understood. 
We  now  know  them  as  they  did ;  and  "  those  rules  of  practice, 
"  pleadings,  forms  and  proceedings  of  the  Courts  of  Record  of  this 
"  State,"  which  were  then  in  use  in  those  Courts.  It  was  these  to  which 
the  duty  of  those  commissioners  was  meant  to  be  applied :  "  To  re- 
"  vise,  reform,  simplify  and  abridge," —  not  to  destroy  or  exterminate. 
The  "Courts  of  Record,"  and  these  "rules  of  practice,  pleadings, 
"  forms  and  proceedings,"  referred  to  as  well  known  and  in  use,  were 
those  described  and  explained  in  our  Revised  Statutes.  They  were 
then  and  there  recognized  and  approved,  and  under,  in  and  by  vir- 
tue of  them  both  law  and  equity  had  been  long  administered.  (See 
Third  Part  of  the  Revised  Statutes,  entitled,  "  An  Act  concerning 
"  Courts  and  Ministers  of  Justice,"  passed  Dec.  10, 1828.  See,  also, 
Chancery  Reports,  Hopkins,  Johnson,  Paige.  Law  Reports,  John- 
son, Cowen,  Wendell,  Hill  and  Denio.)  These  statutes  and  these 
reports  stand,  and  forever  will  stand,  as  the  monuments  of  the 
memorable  names  which  during  that  period  of  our  judicial  annals 
adorned  the  jurisprudence  of  the  commonwealth. 

It  is  proper  to  look  thitherward,  that  we  may  see  what  were 
"  the  rules  of  practice,  pleadings,  forms  and  proceedings  of  our 
"  Courts  of  Record,"  which  it  was  to  be  the  duty  of  these  commis- 
sioners "  to  revise,  reform,  simplify  and  abridge."  It  is  impossible 
to  appreciate  the  Code  of  Procedure  —  what  we  have  got  — till  we 
first  see,  somewhat  clearly,  what  we  had.  What,  therefore,  were 
these  modes  of  administering  law  and  equity,  as  they  were  then  in 
vogue,  and  appeared  in  our  Revised  Statutes,  and  these  annals  of 
our  Courts  ?  This  inquiry  is  equally  needed,  because  the  duty  the 
Legislature  prescribed  for  the  commissioners,  exacts  of  them  "  the 
"  abolition  of  the  present  forms  of  actions  and  pleadings  in  cases  at 
"common  law y"  and  "for  a  uniform  course  of  proceedings  in  all 
"  cases  whether  of  legal  or  equitable  cognizance."     What,  therefore, 


THE  CODE   OF  PROCEDURE.  9 

were  "  those  present  forms  of  actions  and  pleadings  in  cases  at  com- 
"  mon  law ;"  and  what,  too,  was  the  distinction  between  cases  of  le- 
gal and  equitable  cognizance,  and  the  difference  in  the  manner  of 
pleading  in  them,  against  which  these  words  of  the  Legislature 
were  so  remorselessly  directed  ?  There  are  certain  ideas,  or  truths, 
lying  at  the  roots  of  these  old  and  venerable  methods  of  administer- 
ing justice  in  a  civilized  State  which,  at  this  late  day,  ought  to  be 
called  to  light,  more  at  large  and  carefully  than  they  summarily  ap- 
pear in  our  books  of  practice  and  pleadings  —  propositions  inherent 
in  the  nature  of  the  subject  matter,  which  the  Legislature  either 
entirely  overlooked  or  did  not  thoroughly  enough  investigate  be- 
fore it  laid  so  daring  and  reckless  a  hand  on  institutions  so  long  and 
so  indissolubly  in  use,  for  dealing  with  the  subjects  of  litigation. 


LAW  AND  EQUITY. 

Wherever  we  trace  the  origin  of  this  supposed  distinction  be- 
tween Law  and  Equity  (a  point  we  now  defer),  it  is  not  only 
recognized  in  the  Revised  Statutes  by  the  organization  of  the  Court 
of  Chancery,  but  also  by  the  statutory  adoption  of  the  modes  of 
proceeding  peculiar  to  an  action  known  as  an  equitable,  as  distin- 
guishable from  one  at  law.  Let  us  observe,  in  advance,  that  these 
words,  "  Law  "  and  "  Equity,"  have  come  to  be  used  —  and  no  doubt 
were  originally  used  —  in  a  sense  purely  artificial,  or  technical ; 
neither  meaning  what  it  does  when  used,  as  it  is  commonly,  without 
limitation.  Thus  technically  used,  as  they  always  have  been  in 
jurisprudence,  as  a  term  of  art ;  the  word  "Equity"  denotes  a  dif- 
ference in  the  mode  of  proceeding,  or  a  mode  of  proceeding  in  a 
different  class  of  cases  than  is  usual,  rather  than  any  difference  in 
the  principles  of  natural  justice,  or  of  logical  justice ;  for  it  would 
be  intolerable,  could  it  be  supposed  that  in  an  action  at  law,  justice 
might  be  so  administered  without  a  due  regard  to  these  principles 
any  more  than  in  an  equitable  action.  In  its  general  sense,  the 
word  "  Equity  "  is  just  as  applicable  to  an  action  at  law  as  to  one 
in  equity,  because  equity  expresses  the  essence  of  all  law  whatever, 
and  is  paramount  In  the  administration  of  it.  But  by  the  technical 
use  of  it,  and  always  when  understandingly  applied,  this  word 
"Equity"  means  a  particular  mode  of  proceeding  in  the  applica- 
tion of  the  self-same  principles  of  justice  — the  natural  principles  of 


10  THE   CODE   OF  PROCEDURE. 

justice,  so  called)  —to  the  transactions  of  men.  It  is  different  and 
distinguishable  from  a  proceeding  at  law,  or  in  a  court  of  law,  or 
from  a  class  of  cases  to  which  an  action  at  law  is  inappropriate,  or 
unsuitable ;  or  from  cases,  where,  through  the  actions  at  law  in 
vogue,  those  principles  cannot  be  applied  —  so  that,  otherwise,  the 
party  would  be  remediless.  It  is  in  these  cases,  only,  that  the  word 
"  Equity  "  can  be  made  use  of  in  opposition  to,  or  in  contrast  with, 
the  word  "  Law  ";  for,  as  we  have  seen,  the  object  both  of  law  and 
equity,  in  any  other  sense,  is  precisely  the  same.  Indeed,  if  our 
limits  would  permit,  the  source  of  these  two  modes  of  proceeding, 
in  obtaining  the  same  object,  can  be  shown  to  be  the  same ;  and  it 
can  also  be  shown  that  each  method  of  proceeding  —  in  every  sys- 
tem of  enlightened  jurisprudence  —  is  indispensable  for  administer- 
ing justice,  whether  the  jurisdiction  for  doing  it  be  vested  in  a  dis- 
tinct, or  in  the  same,  Court. 

The  mode  of  administering  what,  in  this  technical,  or  artistical 
sense,  is  known  as  "  Equity,"  as  recognized  and  approved  in  our 
Revised  Statutes,  was  derived  from  England.  It  dates  back  beyond 
the  reign  of  Edward  III.,  and  has  ever  since  been  in  use  there.  The 
action  is  conducted  by  Bill,  Answer  and  Replication.  A  Disclaimer, 
the  Demurrer,  and  Plea,  are  resorted  to  in  appropriate  instances. 
The  Bill  is  simply  a  petition  which  detailed  the  special  facts  sup- 
posed to  authorize  the  interposition  of  the  Court,  without  any  for- 
mulas or  the  necessity  of  any  peculiar  or  set  phraseology,  showing 
that  the  plaintiff's  case  was  one  which  ought  to  be  entertained  by 
the  Chancellor,  because,  in  an  action  at  law  the  relief  he  might  be 
entitled  to,  as  against  the  defendant,  could  not  be  obtained.  If  the 
defendant  denied  he  had  any  interest  or  care  in  the  matter,  he  used 
the  Disclaimer.  Whether  the  plaintiff's  case  was  strictly  an  equi- 
table one,  or  one  for  which  he  was  entitled  to  the  relief  he  sought, 
the  defendant  could  have  preliminarily  determined  by  raising  the 
question  on  the  facts,  as  stated  in  the  bill,  by  the  Demurrer,  for  it 
is  well  worth  while  and  a  very  great  saving  of  the  time  of  the 
Court  and  of  its  officers  in  the  end,  as  well  as  of  the  expenses  of  the 
parties,  to  have  it  ascertained  beforehand  and  in  the  first  instance, 
if  possible,  whether,  if  true,  what  the  plaintiff  stated  did  in  fact  en- 
title him  to  any  relief. 

If  the  defendant  desired  to  stop  the  suit,  because  of  some  fact  or 
matter  which  did  not  appear  in  the  plaintiff's  Bill,  he  might  do  so 


THE   CODE   OF  PROCEDURE.  11 

by  a  plea  in  the  nature  of  a  "  plea  in  bar  "  in  an  action  at  law.    If 
by  neither  of  these  modes  he  could  stop  the  suit,  or  obviate  the  ne- 
cessity of  his  defence,  he  made  that  defence  by  his  Answer  to  the 
Bill.     Before  the  Revised  Statutes,  this  Answer,  like  the  Bill,  was 
verified  by  the  oath  of  the  defendant,  -r-  for  the  discovery  of  the 
truth  by  an  appeal  to  the  conscience  in  behalf  of  the  plaintiff,  was 
one  of  the  chief  reasons  for  seeking  the  aid  of  the  equitable  jurisdic- 
tion of  the  Chancellor,  —  the  examination  of  the  defendant  on  oath 
being  unknown  to  the  Common  Law,  or  in  the  ordinary  method  of 
proceeding,  excepting  in  the  shape  of  what  was  styled  "  the  wager 
"  of  law."    The  statements  of  the  defendant,  made  in  this  way,  to  the 
allegations  contained  in  the  Bill,  being  verified  on  oath  and  within 
his  own  personal  knowledge,  were,  in  such  cases,  evidence  in  his 
own  behalf,  defeating,  if  such  was  their  tendency,  the  case  or  sup- 
posed equity  of  the  Bill,  unless  its  statements  were  sustained  by 
two  witnesses,  or  equivalent  circumstances.     But  by  the  Revised 
Statutes,  section  49  of  article  2  of  chapter  1,  part  3,  the  plaintiff 
might  waive  (a  doubtful  innovation)  in  his  bill,  except  when  he 
meant  to  use  it  for  a  discovery  only,  the  necessity  of  the  defendant 
answering  on  oath.     In  that  case,  however,  the  answer  had  no 
greater  or  other  force  as  evidence  than  the  bill  itself,  both  becom- 
ing mere  pleadings  whose  allegations  were  the  issues  so  called,  and 
had  to  be  sustained,  if  at  all,  by  testimony  aliunde.    Provided  the 
plainti^was  not  satisfied  with  the  averments,  or  did  not  admit  the 
defendant's  statements,  he  put  in  a  Replication  to  it,  being  a  gen- 
eral denial  of  its  allegations.     Once  this  Replication  was  special, 
like  that  at  law,  introducing  other  facts,  or  circumstances,  on  which 
the  plaintiff  could  rely  to  avoid  the  effect  of  the  Answer,  or  to  sup- 
port his  own  case,  to  which  the  defendant  might  Rejoin,  etc.    But 
Special  Replications  were  long  since  disused  (whatever  the  reason). 
The  plaintiff,  instead  of  resorting  to  a  Replication  to  put  the  new 
matter  of  the  Answer  at  issue,  was  accustomed  to  amend  his  Bill, 
suggesting  in  it  the  defendant's  case,  and  then  meeting  it  by  charges, 
to  which,  supposing  he  propounded  new  matter  on  his  part,  the  de- 
fendant in  his  further  answer  could  make  any  additional  statements 
he  was  able,  which  would  originally  have  been  contained  in  a  Re- 
joinder.    If  a  Bill  contained  impertinent  or  scandalous  matter,  or 
if  on  the  other  hand,  the  Answer  was  impertinent  or  insufficient, 
either  party  could  have  the  fault  corrected,  or  purged,  either  by  a 


12  THE   CODE   OF   PROCEDURE. 

reference,  or  by  taking  exceptions  in  the  nature  of  a  motion  for  that 
purpose.  If,  arising  out  of  or  connected  with  the  issues  or  facts 
contested  by  the  Bill  and  Answer,  the  defendant  claimed  any 
relief  on  his  part  against  the  plaintiff  in  the  nature  of  Recoupment, 
Counter-claim,  etc.,  he  had  his  recourse  to  a  Cross-bill ;  because,  al- 
though without  it  he  might  dismiss  the  bill,  he  could  not  have  af- 
firmative relief.  Whatever  relief  was  granted  by  the  Court,  as  suit- 
able to  the  case,  was  done  by  a  Decree,  so  called,  which  could  be 
moulded  into  such  provisions  as  were  necessary  to  administer,  in 
the  particular  case,  the  proper  relief.  Therefore,  it  varied  and  could 
not  be  made  to  assume  any  prescribed  formulae,  like  a  judgment  in 
an  action  at  law,  no  more  than  the  Bill  or  the  Answer  might,  like 
the  pleading  at  law.  (See  title  2,  part  3,  Revised  Statute ;  Paige's 
reports,  passim.) 

We  have  observed  that  the  real  distinction  between  Law  and 
Equity  is  merely  artistic,  each  denoting  a  particular  mode  of  admin- 
istering what  men  conceive  to  be  the  principles  of  natural  justice. 
For  instance,  it  is  the  object  of  a  Court  of  Equity,  in  a  case  justify- 
ing its  interposition,  to  prevent  the  commission  of  a  wrong  —  that 
of  a  Court  of  Law  to  punish  for  one  already  committed.  One  acts 
administratively,  or  dispensively  ;  the  other  punitively,  or  by  way 
of  retribution.  The  theory  of  an  action  at  law  assumes,  on  the 
plaintiff's  part,  the  wrong  already  done ;  the  contract  broken  or 
non-performed ;  that  he  has  suffered  damages,  in  consequence,  ca- 
pable of  being  estimated  or  indemnified  in  money,  the  current  coin  ; 
that  these  ought  to  be  ascertained,  and  judgment  and  execution 
therefor  be  given  him.  Now  this  is  the  common,  ordinary  method 
of  redressing  wrongs.  It  always  has  been,  as  it  must  be,  the  meth- 
od in  every  civilized  commonwealth.  In  ninety-nine  cases  out  of 
one  hundred,  it  is  as  satisfactory  and  complete  as  the  imperfections 
of  human  transactions  allow  ;  and  it  is  the  best,  speediest,  most  cer- 
tain way  possible  of  compensation,  or  indemnity.  Whatever  the 
nature  of  the  injuries  sought  to  be  redressed,  this  method  admits  of 
every  species  being  redressed  by  proceedings  fixed  and  settled,  re- 
duced to  or  expressed  in  a  formula  prescribed,  as  we  will  see,  for  the 
purpose,  and  by  the  use  of  which  the  point  of  law  or  of  fact,  on 
which  the  merits  of  the  controversy  turns,  could  first  be  settled  or 
agreed  upon  by  the  parties  themselves,  and  then  tried,  and  judg- 
ment and  execution  given. 


THE   CODE  OF  PROCEDURE.  13 

If  the  great  mass  of  litigation  in  a  civilized  state  could  not  thus 
be  reduced  to  such  a  fixed  and  formal  system,  and  be  administered 
and  expedited  by  means  of  formulae  prescribed  for  the  solution  of  it, 
the  injuries  done  its  citizens,  or  their  controversies  touching  them, 
could  not  be  examined  or  determined  at  all ;  or,  if  attempted,  the 
expense,  the  delays,  the  uncertainty,  the  multiplicity  of  questions 
and  subtleties,  would  render  any  satisfaction  as  worthless  as  it 
would  be  impossible.  Almost  all  of  the  controversies  between  the 
citizens  of  a  State,  can  be,  as. of  necessity  they  must  be,  if  adjudi- 
cated at  all  advantageously,  heard  and  determined  by  some  common 
or  ordinary  tribunal,  in  some  certain  fixed  and  prescribed  method 
or  system,  to  the  rules  of  which  all  must  submit,  and  by  which  the 
judge  and  the  jury,  as  well  as  the  parties  and  lawyers,  must  be  con- 
trolled. The  common  law  method  of  proceeding  claims  to  be,  and 
is  supposed  to  be,  such  a  system.  It  is  in  fact  the  common  or  ordi- 
nary scheme  or  mode  by  which,  punitively,  ever  since,  at  least,  the 
reign  of  Edward  III.,  compensatory  justice  has  been  administered 
in  England,  with  a  most  wonderful  certainty,  dispatch  and  satis- 
faction, by  means  of  Special  Pleading,  by  prescribed  formulae.  But 
in  the  one  hundredth  instance,  this  punitive,  or  retributory,  mode 
of  administering  justice  has  been  found  to  be  vain,  too  imperfect 
and  imbecile,  because  some  wrong  threatened  to  be  done  could  not 
be  compensated  by  having  the  party  await  the  event,  and,  then  re- 
sort to,  a  judgment  and  execution  for  damages  by  the  ordinary 
mode.  In  every  civilized  and  enlightened  state,  therefore,  there 
needs  this  extraordinary,  or  unusual  court,  or  a  court  exercising 
this  extraordinary  jurisdiction,  so  called. 

This  jurisdiction,  however,  is  extraordinary  in  no  sense,  except 
that  it  is  exercised,  or  that  it  hears  and  determines  the  cases  of 
which  it  takes  cognizance,  extra  ordinem  —  that  is,  out  of  or  be- 
yond the  ordinary  or  common  method,  or  the  one  in  common  use, 
for  administering  the  laws  by  damages  punitively,  or  by  way  of 
retribution.  The  Court  of  Equity  acts  preventively,  or  adminis- 
tratively, instead  of  by  way  of  retribution,  like  the  Court  of  Law 
or  the  ordinary  tribunals;  and  therefore  it  is  said  to  act  extra 
ordinem.  This  is  all  that  is  meant  by  its  course  of  proceeding,  when 
it  is  contrasted  intelligently  with  the  ordinary  mode  of  proceeding  at 
Law.  Nothing  is  more  apparent  than  that  in  the  various  and  com- 
plex affairs  of  a  civilized  Commonwealth,  cases  will  occasionally 


14  THE   CODE   OF   PROCEDURE. 

happen  when  the  ordinary  or  punitive  action  would  be  in  vain,  or 
nearly  so.     In  such  cases,  some  tribunal  ought  to  be  vested  with 
the  power  of  interfering  and  proceeding  administratively  or  dispen- 
pively  —  that   is,  extra  ordinem.      Any    system   of  jurisprudence 
without  such  a  suppletory  power,  somewhere  instituted,  would  be 
inexcusably  defective.     In  an  action  of  Equity,  therefore,  what  is 
sought  for  is,  contrary  to  the  usual  mode,  the  prevention  of  some 
wrong  being  done,  as  it  may  be,  by  a  breach  of  a  contract  even,  as 
by  compelling  a  specific  performance  of  it ;    or  the  abuse  of  a  con- 
tract, or  even  of  a  judgment  at  law,  by  canceling  it  or  prohibiting 
its  enforcement ;  or  the  waste  of  trust,  or  of  partnership  property, 
or  of  its  misapplication,  etc.     In  such  cases,  when  the  propriety  or 
necessity  of  it  is  demonstrated  by  the  special  circumstances,  the 
Court  of  Equity  assumes  to  act,  extra  ordinem,  that  is,  preven- 
tively, or  dispensively,  for  the  reason  that  to  suffer  the  injury  to 
be  done  and  then  let  the  party  seek  his  redress  by  way  of  punish- 
ment, or  retributively,  as  in  the  ordinary  tribunal  at  law,  by  a 
judgment  and  execution  for  damages,  would  oftentimes  be  utterly 
useless,  in  vain,  or  worse.     The  common  method  of  redressing  in- 
juries punitively,  ought  not,  without  some  good  and  sufficient  cause, 
to  be  interfered  with,  because  it  is  the  policy  and  the  safety  of  the 
State  and  its  citizens  to  have  all  the  controversies  possible  heard 
and  determined  in  the  ordinary  way  ;  and  in  the  ordinary  tribunal 
it  has  provided  that  the  business  of  litigation  shall  be  certain,  satis- 
factory, expeditious  and  economical. 

It  is  plain,  therefore,  that  a  resort  to  this  extraordinary  power, 
or  mode  of  interfering  with  the  usual  course,  ought  not  to  be  encour- 
aged, and  never  should  be  allowed  except  on  special  and  satisfactory 
reasons,  addressed  in  each  case  to  the  tribunal  in  which  the  juris- 
diction is  lodged.  It  is  plain,  too,  that  these  reasons  will  depend 
on  special  circumstances  —  for  the  most  part  collateral,  or  independ- 
ent of  what  might  appear  to  be  intrinsic  on  the  face  of  the  transaction, 
or  the  actual  contract,  or  the  relation  between  the  parties  :  —  that 
these  special  circumstances  thus  to  be  addressed  to  the  discretion 
of  the  extraordinary  tribunal  will  vary  in  each  successive  case  calling 
for  its  interposition  ;  and  that,  therefore,  the  course  of  proceeding  in 
Equity  cannot,  as  at  Law  —  except  to  a  comparatively  limited  ex- 
tent —  be  reduced  to  prescribed  or  settled  formula?  —  although,  as 
far  as  practicable,  certainty,  uniformity  or  dispatch,  exacts  and  ap- 


THE   CODE   OF   PROCEDURE.  15 

proves  of  it.  Many  of  the  circumstances,  if  not  most  of  them  which 
might  be  proper  for  the  consideration  of  such  a  tribunal  in  its 
interposing  administratively  could  only  be  fit  and  suitable  for  the 
judge  himself,  being  generally  wholly  inconsistent  with  a  trial  of 
a  question  of  fact  by  a  jury  in  the  ordinary  method  of  compensatory 
justice. 

This  extraordinary,  suppletory  and  necessary  jurisdiction  is  re- 
cognized by  the  Revised  Statutes  and  was  vested  in  the  Chancellor  ; 
but  each  circuit  judge  in  his  own  circuit,  and  in  all  the  other  circuits 
except  the  first,  and  the  Vice  Chancellor  in  the  first  circuit,  had  and 
exercised,  each  in  his  own  circuit,  all  the  original  jurisdiction  and 
power  then  vested  in  the  Chancellor  in  a  certain  class  of  cases  and 
matters  specified.  But  no  matter  where  vested,  or  in  what  tribunal 
exercised,  the  necessity  of  this  administrative  jurisdiction  exists, 
and  alwrays  will,  more  or  less,  in  any  enlightened  system  of  juris- 
prudence. If  it  must  thus  exist  and  be  exercised,  what  mode  of 
proceeding  could  the  wit  of  man  conceive  better  fitted  for  the  pur- 
pose than  the  one  the  Revised  Statutes  approved  and  cherished  ? 
No  system  of  procedure  is  liable  for  the  negligence  or  incapacity 
of  the  men  who  administer  it.  But  to  guard  against  abuses,  or  to 
remedy  them,  if  they  should  happen  to  come  to  exist,  the  Revised 
Statutes  provided : 

"  The  Chancellor  shall  have  power  from  time  to  time,  by  general 
rules  of  court,  to  establish,  modify,  alter  and  amend  the  practice  of 
the  Court  of  Chancery  in  the  cases  not  provided  for  by  any  statute. 
And  the  Chancellor  shall,  within  two  years  after  this  chapter  shall 
commence  and  take  effect,  and  at  the  expiration  of  every  seven 
years  thereafter,  revise  the  rules  of  the  said  court  with  a  view  to 
the  attainment,  so  far  as  may  be  practicable,  of  the  following  im- 
provements in  the  practice  :  1 .  The  abbreviating  of  bills,  answers 
and  proceedings ;  2.  The  expediting  of  the  decisions  of  cases ;  3. 
The  diminishing  of  costs ;  and  4.  The  remedying  of  such  abuses 
and  imperfections  as  may  be  found  to  exist  in  the  practice  in  any 
class  of  suits  cognizable  in  the  Court  of  Chancery."  (See  part  3, 
chapter  I,  article  2,  §  51,  Revised  Statutes.) 

Probably  the  Chancellor  always  had  it  in  his  power  to  look  after, 
constrain  or  prevent,  as  far  as  this  is  possible,  these  evils  specified 
in  this  legislative  provision  and  at  which  it  is  aimed.  The  prolix- 
ity, delay  and  expensiveness  of  a  suit  in  equity  have  become  not 
only  proverbial,  but  are  now  immortalized,  dramatically,  in  the 


16  THE   CODE   OF  PROCEDURE. 

mocking  scenes  of  the  great  enchanter  of  our  age.  These  infirmities 
naturally  belong  to  the  method  of  pleading  at  large.  It  is,  as  we 
will  more  particularly  see,  not  the  object  of  the  mutual  statements 
of  the  parties  in  the  Bill  and  Answer  to  extract,  by  alternate  and 
consecutive  confession  or  avoidance,  some  one  main  or  decisive 
point,  on  which  the  merits  of  the  controversy  turn,  or  on  which 
they  are  willing  they  should  turn.  The  pleaders  select  and  state 
the  special  facts,  on  which  they  respectively  rely,  in  their  own  way, 
circumstantially  and  in  detail.  Constrained  by  no  formula?,  they 
can  indulge  themselves  in  copious  and  wordy  amplification,  more  or 
less  varied  or  repeated  in  description  or  particulars,  according  to 
each  man's  own  taste,  style,  choice  or  sagacity.  Consequently  it 
became  necessary,  although  the  pleadings  were  ended,  before  the 
Court  could  proceed  or  assume  to  decide,  that  he  should  review, 
collate  and  consider  the  opposite  effect  of  these  different  statements 
as  completed,  in  order  to  distinguish,  separate  and  extract  the  prop- 
ositions mutually  admitted,  and  those,  which,  though  undisputed, 
are  immaterial  to  the  case.  This  method,  thus  peculiar  to  the  Court 
of  Chancery,  and  adapted  to  the  nature  of  its  objects,  is  called,  by 
lawyers,  pleading  at  large  ;  —  the  term  being  so  used  to  distinguish 
the  mode  from  what  is  known  as  the  special  pleading  in  the  system 
of  actions  at  common  law  by  means  of  the  prescribed  and  logical  for- 
mulae, to  which  the  parties  are  compelled  to  accommodate  the  facts 
on  which  each  relies  in  their  controversy,  and  analyze  it  by  confess- 
ing or  avoiding  each  other's  statements,  step  by  step,  till  they  logi- 
cally arrive  at  one  single  and  material  point  or  agree  upon  one  to 
be  submitted  for  decision.  The  Revisers,  it  seems,  were  aware  of 
this  natural  and  almost  inevitable  tendency  of  this  kind  of  general 
pleading  to  prolixity,  delay  and  expense.  Whether  or  not  by  vir- 
tue of  his  oifice  the  Chancellor  had  such  a  power,  they  conferred  it 
upon  him  with  the  duty  it  imposed,  that,  as  a  part  of  the  organic 
nature  of  our  Court  of  Equity,  there  might  be,  beyond  any  question, 
means  co-existing  for  purifying,  protecting  and  preserving  itself 
from  the  disadvantages  of  these  noxious  infirmities.  We  call  atten- 
tion to  this  legislative  provision,  that  it  may  be  recollected  how  ad- 
mirably these  venerable  and  sagacious  men,  while  they  secured  to 
us  all  the  benefits  of  this  equitable  and  indispensable  jurisdiction, 
sought  to  avert,  coerce  or  remedy,  from  time  to  time,  the  evils  they 
knew  to  be  incident  to  its  mode  of  proceeding.     We  will  see,  in  an- 


THE   CODE   OF   PROCEDURE.  17 

other  stage  of  this  exposition,  how  these  evils  have  multiplied  and 
swarmed  in  every  quarter  of  the  business  of  litigation,  since  the 
system  of  actions  and  the  forms  of  pleading  in  cases  at  common 
law  have  been  so  rashly  abolished,  and  this  exceptional  method  of 
pleading  in  equity  compelled  in  all  cases  both  of  legal  and  equitable 
cognizance. 


OF  THE  NATURE  OF  ACTIONS  AT  LAW. 

We  have  already  observed,  that  the  common  or  ordinary  mode 
of  redressing  wrongs  in  a  civilized  commonwealth,  must,  of  neces- 
sity, be  punitive :  that  is,  by  damages  for  the  injury  to  be  ascer- 
tained, and  by  judgment  and  execution  therefor,  given  by  way  of 
compensation.  It  is,  also  —  and  the  proposition  addresses  itself  to 
every  man's  common  observation  and  sense  —  the  sole  and  only 
mode  by  which  ninety-nine  out  of  an  hundred  cases  can  be  at  all  re- 
dressed. The  object  of  an  action  at  law,  being  this  ordinary  or 
common  remedy,  is  solely  the  ascertainment  of  the  plaintiff's  right 
to  those  damages,  and  their  amount  in  money,  in  each  given  in- 
stance. Whenever,  therefore,  the  object  of  an  action  is  damages 
it  is  self-evident  that  the  mode  of  determining  the  fact,  on  which, 
in  the  first  place,  the  plaintiff's  right  to  them  depends,  and  of  ascer- 
taining and  satisfying  them,  must  be  susceptible  of  being  systema- 
tized or  reduced  experimentally,  no  less  than  logically,  to  certain 
fixed  or  prescribed  steps  or  formulas,  so  called.  Further  still,  it  is 
apparent  that  if  this  can  be  done,  almost  the  entire  litigation  of  the 
commonwealth  (for  it  always  must  consist  almost  altogether  of  this 
kind)  may  be  conducted  with  a  certainty,  a  dispatch,  uniformity 
and  satisfaction,  attainable  in  no  other  way  —  surpassing  any  other 
which  can  be  conceived  of,  in  which  the  forms  and  nature  of  the 
pleadings  are  left  open,  pro  re  nata,  to  the  choice,  reason,  taste  or 
skill  of  the  understanding  of  any  one  or  more  persons,  in  each  par- 
ticular instance.  If  the  trial  of  the  fact  for  determining  the  right  to 
the  damages  by  a  jury  be  deemed  indispensable  and  paramount,  it 
is  just  as  indispensable  and  paramount  that  the  fact  to  be  tried 
should,  at  the  first  —  as  the  issue  or  result  of  the  use  of  these  for- 
mula —  be  fixed  or  settled.  This  is  essential,  and  should  be  com- 
pelled, in  order  that  the  judge,  the  jury,  the  parties  and  lawyers 
concerned,  may  know  unmistakably  what,  and  what  alone,  is  on 


18  THE   CODE   OF   PROCEDURE. 

hand,  without  being  obliged  to  find  out  of  the  case  at  large  on  the 
trial  what  is,  or  what  ought  to  be,  the  exact  point  in  dispute. 


THE  ISSUE. 

The  great  use  or  value  of  these  special  formulae  appears,  by  their 
compelling  the  litigants  to  dispense  with  every  fact  which  is  undis- 
puted, or  which  it  is  not  worth  while  or  material  to  dispute ;  and 
to  agree  on  the  real  point  of  fact,  or  question  of  law  between  them 
on  which  the  controversy  turns.  When  this  is  done,  and  well  done, 
as  it  can  be,  a  Court  of  law  may  hear  and  determine  fifty  cases, 
while  it  may  not  try  one  without  these  preliminary  steps,  or  when 
it  enters  on  the  trial  at  large,  being  then  obliged  as  a  part  of  the 
duty  or  necessity  imposed  on  the  judge,  to  sift  out  the  disputed 
from  the  undisputed  matter.  Indeed,  when  the  parties,  their  law- 
yers and  the  Court,  enter  thus  at  large  upon  the  trial  of  a  cause  (the 
real  point  of  law  or  fact  on  which  their  strife  turns  being  as  yet  un- 
determined on  the  record  beforehand)  very  little  matter  —  although, 
in  truth,  the  most  may  be  non-essential  —  will  ever  be  conceded. 
Hence  the  greatest  part  of  the  time  and  labor  spent,  is  wasted  over 
altercating  proofs  of  what  by  the  use  of  these  special  formulae  would 
have  been  cleared  away  or  dispensed  with  altogether. 

The  administration  of  the  law  consists  in  a  constant  repetition  or 
recurrence  of  similar  facts  —  of  the  same  questions  of  law.  What 
has  been  done,  over  and  over  again,  in  the  pursuit  of  the  same,  or 
of  a  similar  object,  ought  most  certainly,  if  practicable,  to  be  re- 
duced to  fixed  or  set  forms  of  proceedings  —  abbreviated  methods 
of  effecting  the  same  constant  results  :  prescribed  formulae. 

Such  formulae,  specially  prescribed,  have  been  successfully  and 
most  wonderfully  attempted  in  the  actions  known  as  the  common 
law  actions,  so  classified  as  to  reach  all  the  ordinary  cases  of  a  com- 
pensatory nature  between  man  and  man.  Every  enlightened  State, 
it  is  submitted,  must  have  some  such  action,  or  common  method  of 
proceeding,  for  without  a  prescribed,  summary,  abbreviated,  rapid 
mode  of  administering  the  business  of  litigation  between  men  in 
most  cases,  it  could  not  be  done  at  all ;  or  if  attempted,  could  only 
be  done  in  such  confusion,  at  such  disadvantage,  and  with  such  de- 
lays, uncertainty,  inconsistency  and  expense,  that  there  would  be 
essentially  a  denial  of  justice  —  no  matter  how  numerous  or  multi- 


THE   CODE  OF  PROCEDURE.  19 

plied  its  tribunals,  or  how  capable,  disciplined  and  honest  its  judges 
and  lawyers. 

Such  an  abbreviated  and  prescribed  method  of  transacting  the 
business  of  litigation,  in  all  ordinary  cases  and  tribunals,  bears  to 
this  vast  and  imperious  department  of  human  labor  the  relation 
which  a  choice  piece  of  machinery  does  to  any  other  kind,  whether 
it  be  merely  mechanical,  or  more  intellectual.  It  is  susceptible  of  a 
similar  sort  of  regularity,  accuracy,  certainty  and  celerity.  If  these 
qualities  are  needed  anywhere  in  human  affairs,  they  are,  of  course, 
in  the  administration  of  justice.  Where,  as  in  most  cases  between 
man  and  man,  this  consists  of  nothing  else  than  applying  the  law  in 
a  constant  series  or  recurrence  of  the  same  or  similar  steps,  for  the 
same  or  a  similar  object,  it  should  seem  a  strange  and  anomalous 
thing,  if  there  might  not  be  suggested  and  established  certain  fixed 
modes  of  proceeding  to  the  one  inevitable  result  with  the  accuracy, 
certainty,  uniformity  and  dispatch  of  a  piece  of  machinery.  It  is  so, 
and  every  man  sees  and  acknowledges  the  practicability  in  all  the 
other  great  branches  of  civilized  labor.  Such  in  its  appropriate 
sphere  —  the  business  of  litigation  —  is  this  common  law  action. 
Its  abbreviated  methods,  01-  its  special  and  prescribed  formulae,  for 
the  resolution  of  the  decisive  question  of  law,  or  of  fact,  out  of  the 
vast  mass  of  matter  more  or  less  involved  in  any  controversy,  are 
of  the  nature  of  a  choice  and  wonderful  piece  of  beautiful,  no  less 
than  useful,  machinery  for  the  administration  of  justice,  in  all  that 
class  of  remedies  called  punitive,  or  where  damages  are  sought  and 
given  in  satisfaction  of  a  wrong  done,  and  after  it  has  been  done. 
It  is  the  achievement  of  logic  and  experience,  subjugated  by  the 
arts  of  necessity.  It  worked  well  in  Rome  more  than  seven  cen- 
turies, and  it  survived  in  England  the  wreck  of  all  the  Empire.  It 
has  worked  well  in  England  for  at  least  four  centuries,  and  in  this 
our  own  country  for  at  least  two,  since  its  foundations  were  laid  in 
the  wilderness. 

This  common  law  action,  or  mode  of  proceeding  by  special  for- 
mulae, existed  at  the  time  of  our  Revised  Statutes,  and  was  recog- 
nized and  approved  by  them.  It  was  "  the  rules  and  practice,  plead- 
"  ings,  forms  and  proceedings  "  in  this  action  which  it  was  made  the 
duty  of  the  commissioners  "to  revise,  reform,  simplify  and  abridge." 
Its  rules  had  been  relaxed  and  abused,  to  be  sure,  as  we  will  see ; 
yet,  notwithstanding,  the  Constitution  meant  to  preserve  it, 
2 


20  THE   CODE   OF  PEOCEDUEE. 

though  in  the  judgment  of  the  framers  it  needed  to  be  righted  or 
improved.  This  is  the  action,  too,  which  the  Legislature  —  con- 
trary to  the  spirit  and  letter  of  the  Constitution — meant  to  destroy, 
and  which  it  is  made  the  duty  of  the  commissioners  to  abolish. 

What  is  this  common  law  action,  its  methods  of  procedure,  and 
its  relations  to  the  dispatch  of  the  business  of  litigation  ?  The  ob- 
ject of  this  exposition  cannot  be  accomplished  without  inquiring 
into  its  nature,  origin  and  history,  with  considerable  detail,  more 
than  suits  the  habits  of  the  age,  or  its  frivolous  estimation  of  what- 
ever may  be  old.  "We  mean  to  do  it,  because  we  mean  —  if  it  is 
within  our  power  —  to  vindicate  the  principles  of  this  common  law 
method,  and  not  only  its  vast  superiority  to  any  other,  but  its  ab- 
solute inexorable  necessity. 

We  claim  no  originality,  or  novelty,  in  any  of  the  views  we  have 
taken,  or  shall  take,  in  dealing  with  the  subject.  These  ideas 
and  views  can  all  be  found  within  the  circle  of  an  ordinary 
law  library.  We  are  responsible  alone  for  the  patience,  the  hardi- 
hood, or  the  folly,  of  recalling  them  to  the  attention  of  those  who 
care  for  accuracy,  economy,  satisfaction  or  celerity,  in  the  adminis- 
tration of  justice. 

WHAT  IS  THIS  COMMON  LAW  ACTION? 

We  derived  it  from  England,  who  derived  it  from  the  Romans, 
who  derived  it  from  the  Greeks.  An  inquiry  into  its  ultimate 
source  is  not  within  the  scope  of  this  exposition.  It  is  enough, 
now,  to  call  attention  to  the  fact  that  once  no  suit  could  be  in- 
stituted unless  the  right  to  bring  it  was  given,  limited  and  defined 
by  what  was  called  an  original  writ.  The  jurisdiction  of  the  jus- 
tices themselves,  or  their  authority  to  redress  the  infraction  of  a 
right,  was  derived  solely  from  this  writ.  Each  writ  was  founded 
on  some  principle  of  law,  which  gave  the  party  suing  it  out  the 
right  to  it,  and  to  be  redressed  for  the  injury  done  him  stated  on 
its  face.  The  facts,  therefore,  in  each  instance,  had  necessarily  to 
be  stated  in  the  writ  with  certainty  enough  to  bring  it  within  the 
principle  of  law,  on  which  the  party  depended,  and  in  virtue  of 
which  it  was  issued,  that  the  justices  might  test  their  own  jurisdic- 
tion, and,  if  assured  of  it,  allow  the  plaintiff  his  action  before  them 
for  the  redress  of  the  wrong  of  which  he  complained.    The  first  step 


THE   CODE   OF  PROCEDURE.  21 

he  took,  with  which  the  justices  had  anything  to  do,  was  to  state 
his  case  before  them.  This  he  did  in  the  form  of  a  narrative,  or  de- 
claration, once  orally,  but  afterward  in  writing.  This  statement,  it 
follows,  had  to  agree  with  that  in  the  writ,  and  was  in  truth  no 
more  than  an  amplification  of  the  same  facts  appearing  there,  from 
which  there  might  be  no  substantial  variance  or  substitution  of  an- 
other case.  The  mode  in  which  the  justices  fulfilled  the  command 
of  the  writ,  or  the  proceedings  before  them  in  consequence  of  it, 
was  called  for  brevity  or  convenience  "  the  action?  by  which  the 
courts  were  accustomed  to  hear  the  parties  and  determine  the  case 
sent  them,  or  the  points  in  it. 

Whatever  the  form,  or  nature  of  the  writ,  the  justices  did  this 
by  a  fixed  and  settled  set  of  forms,  which  were  substantially  the 
same  in  every  case,  called  the  formulae,  or  form  of  the  particular  ac- 
tion, although  the  statement  of  facts  on  which  the  party  relied  would 
vary  in  his  narrative  to  meet  and  sustain  the  case  detailed  in  the 
original  writ.  The  steps  the  party  then  took  before  the  justice  in 
obedience  to  the  writ,  came  by  custom  to  be  designated  according 
to  the  nature  of  the  right  or  principle  of  law  on  which  the  writ  it- 
self was  founded,  and  had  been  issued.  It,  therefore,  took  its  name 
from  the  nature  of  the  case  in  the  writ,  and  from  the  word  in  that 
instrument  which  the  most  significantly,  happily  or  briefly  described 
its  peculiarity.  Thence  there  came  to  be  as  many  actions,  so  called, 
as  writs,  notwithstanding,  strictly,  there  was  but  one  simple  method 
of  proceeding,  in  each  instance,  in  court,  particularly  as  by  degrees 
the  reason  of  the  necessity  of  the  writs  which  originally  caused  the 
classification  became  obsolete.  The  distinction  of  rights  which  had 
been  created  by  the  writs,  was  afterward  attached  to  the  several 
actions  and  preserved  by  the  names  in  like  manner  given  them.  The 
enumeration  of  the  several  actions  was  identical  with  that  of  the  writs 
—  of  the  writs  with  that  of  the  several  actions.  No  one,  as  it  hap- 
pened, at  last,  looked  beyond  the  "  narrative  "  or  "  declaration," 
the  first  proceeding  in  court  before  the  justice,  to  see  the  nature  of 
the  action  on  hand.  Some  of  these  writs  and  the  corresponding 
actions  have  long  since  been  disused,  their  place  having  been  sup- 
plied by  the  use  of  some  other,  as  Writs  of  Right,  or  Writs  of  En- 
try, for  trying  the  rights  of  property  in  land,  as  distinguished  from 
those  in  which  the  right  of  possession  only  was  the  subject. 

Of  these,  never  obsolete,  there  was  the  writ  and  corresponding 


22  THE   CODE   OF   PROCEDURE. 

action,  of  Covenant,  of  Debt,  of  Detinue,  of  Trespass,  of  Trespass 
on  the  Case,  of  Ejectment,  as  well  as  the  plaint  and  action  of  Re- 
plevin. These  writs  and  actions,  in  theory,  were  supposed  to,  and 
did  in  fact,  provide  a  remedy  for  every  species  of  civil  injuries  or 
wrongs  a  man's  person  or  property  is  exposed  to  in  a  civilized  state, 
when  the  redress  sought  for  and  given  was  the  punitive,  or  on  the 
principle  of  retribution  in  damages,  in  contradistinction  to  the  pre- 
ventive, or  dispensatory  method.  By  force  of  necessity  and  expe- 
rience the  various  subjects  of  this  kind  of  litigation  were  classified, 
as  we  have  seen,  and  distinguished,  covering  and  including  every 
species  it  is  possible  to  conceive  of,  and  providing  a  special  method 
of  proceeding  for  each  species  adapted  to  the  nature  and  logic  of  it. 
Each  class  had  prescribed  and  allotted  to  it  its  own  peculiar  and  ap- 
propriate formulae,  by  which  every  question,  be  it  law  or  fact,  which 
could  arise  in  the  given  case,  on  which  the  merits  of  the  controversy 
turned,  must  be  first  publicly  eliminated,  stripped  of  all  undisputed 
matter,  ascertained  and  settled.  Then,  and  not  till  then,  was  the 
question  to  be  tried  by  the  court  or  by  the  jury,  and  determined. 

Now  this  is  a  classification,  too,  which  exists  in  the  nature  of 
things,,  of  which  the  subjects  of  this  kind  of  litigation  are  suscepti- 
ble, and  which  must  be  adopted  and  taken  advantage  of  in  the  conduct 
of  civil  controversies,  if  men  mean  to  apply  to  this  insatiable  branch 
of  labor  the  same  prudence  and  sagacity  they  do  in  the  others,  to 
avoid  confusion,  uncertainty,  delays  and  expenditure ;  or,  if  they 
would  seek  a  scheme  by  which  it  may  be  possible  to  administer 
justice  to  any  degree  of  satisfaction. 

The  use  of  these  original  writs  as  essential  methods  of  instituting 
a  suit,  or  discriminating  its  species,  being  thus  superceded  by  the 
use  of  the  several  actions  they  in  the  first  instance  give  rise  to, 
let  us  examine  more  particularly  the  specific  nature  of  each  of  the 
latter,  as  well  as  the  formulas  of  conducting  them  allotted  to  each. 

The  action  of  Covenant  is  the  remedy  where  a  party  claims  a 
judgment  for  damages  for  the  breach  of  a  promise  made  by  an 
instrument  in  writing  under  seal.  Where  he  claims  the  recovery  of 
a  certain  or  liquidated  sum  he  alleges  to  be  due  him  his  action  is 
Debt,  and  the  judgment  the  amount  of  it.  Detinue  is  the  remedy 
where  the  party  claims  the  specific  recovery  of  goods  and  chattels, 
although  the  judgment  may  be  given  for  the  value  of  them  with 
damages  for  the  detention,    It  is  in  form  an  action  ex  delicto,  as 


THE   CODE   OF  PROCEDURE.  23 

distinguishable  from  one  ex  contractu.  So  is  Replevin  for  the  re- 
covery of  damages  for  an  illegal  taking  and  detention  of  goods  and 
chattels.  It  is  the  only  action  in  which  the  property  could  be 
specifically  re-delivered,  although  in  detinue  there  might  be  a  rede- 
livery, also,  by  way  of  collateral  relief.  The  action  of  Trespass  lay 
where  a  party  claimed  damages  for  an  injury  to  his  person  or  prop- 
erty committed  with  violence  against  him,  either  express  or  implied. 
In  all  actions  of  Trespass  on  the  case,  where  a  man  had  sustained  a 
loss  or  damage  by  the  wrong  of  another,  he  could  have  his  action 
and  judgment  for  his  damages.  The  theory  of  the  original  writ  in 
Case,  and  of  the  corresponding  action,  is  to  give  a  remedy  for  a 
wrong,  as  in  the  nature  of  a  trespass,  or  which  resembles  a  trespass  ; 
although  the  divers  actions  this  writ  gave  rise  to  —  Assumpsit, 
Trover,  Deceit,  etc. —  did  not,  at  last,  proceed  on  that  idea.  As- 
sumpsit, one  branch  of  the  action  of  trespass  on  the  Case,  came  to 
be  considered  an  action  by  which  a  party  claimed  and  recovered 
damages  for  a  breach  of  a  simple  contract,  either  expressed  or  im- 
plied. It  is  founded  on  a  good  consideration,  and  in  the  end  was 
treated  as  an  action  ex  contractu,  instead  of  ex  delicto,  as  it  was 
in  its  origin  ;  while  Trover,  another  branch  of  the  same  original 
writ,  was  treated  as  an  action  ex  delicto,  and  lay  for  the  recovery 
of  damages  for  the  conversion  of  goods  and  chattels  in  which  the 
quo  animo  of  the  defendant  was  not  essential.  The  quo  animo, 
however,  does  appear  to  be  essential  in  the  other  actions  on  the  Case, 
and  more  characteristically  so  called  as  distinguishing  them  from 
their  fellows,  Assumpsit  and  Trover,  as  those  for  deceit,  slander, 
libel,  etc. 

The  action  of  ejectment  is  strictly  an  action  of  trespass  for  dam- 
ages, and  was  originally  so  considered.  The  object  of  it  was 
damages  in  behalf  of  a  tenant  for  a  term  of  years,  who  had  been 
forcibly  ejected  from  his  land.  At  last  the  justices  determined, 
adopting  the  rule  the  Court  of  Chancery  had  applied  in  interposing 
in  his  behalf,  that  the  tenant  was  not  only  entitled  to  recover  his 
damages,  but  that  he  should  also,  by  way  of  additional  relief, 
have  possession  of  the  land  itself  delivered  to  him  for  the  term  of 
years  of  which  he  had  been  ousted.  It  was  an  object  to  try  the 
title  to  land  in  some  mode  less  inconvenient  than  the  real  actions, 
founded  on  Writs  of  Right  or  of  Entry.  As  soon  as  the  Courts 
decided  that  in  this  action  of  trespass  by  the  tenant,  he  might,  as 


24:  THE   CODE   OF   PROCEDURE. 

collateral  to  his  judgment  for  damages,  have  the  possession  of  the 
land  delivered  to  him,  the  judges  approved  of  the  contrivance,  that 
a  man  who  claimed  the  title  to  the  land  might  try  his  right  as 
against  the  person  in  possession  by  the  fiction  of  a  lease  he  was 
supposed  to  have  executed  to  a  supposed  tenant  or  lessee,  who  to 
regain  his  possession,  of  which  he  was  supposed  to  have  been  ousted, 
was  compelled  to  prove  the  title  of  his  lessor,  the  real  claimant  and 
party,  in  his  action  as  against  the  party  in  possession,  who  was  not 
allowed  to  dispute  or  question  the  theory  of  the  supposed  lease.  In 
every  case  of  lawful  claim  to  land  the  action  of  Trespass  became,  in 
this  way,  the  only  method  of  trying  and  determining  the  title  to 
land,  generally  denominated  Ejectment,  sometimes  Trespass  to  try 
titles,  and  sometimes  a  Real  or  Mixed  action. 

We  have  already  observed  that  this  natural  and  logical  classifica- 
tion of  actions  includes  every  species  of  injury  possible,  done  to  a 
man's  person  or  property  in  a  civilized  state,  of  the  kind  which  may 
be,  and  which  public  necessity  exacts  should  be,  redressed  by  a 
judgment  for  damages.  Yet  even  the  use  of  some  of  these  has  been 
practically  circumscribed  or  superceded.  Covenant,  being  lim- 
ited to  sealed  instruments,  could  only  be  seldom  resorted  to, 
those  instruments  being  so  few  compared  with  the  swarm  of  simple 
contracts  written  or  implied.  The  action  of  Debt,  except  in  the 
case  of  a  penal  bond,  became  supplanted  by  Assumpsit,  which  action, 
after  the  courts  of  law  had  ravished  it  from  Chancery  and  moulded 
it  to  their  own  use,  became  the  current  and  chosen  remedy,  wher- 
ever damages  could  be  claimed  on  the  breach  of  all  those  under- 
takings which,  though  never  actually  made  in  fact,  do  yet  constantly 
arise  by  the  intendment  of  law  —  that  every  man  has  promised  to 
do  what  on  the  facts  it  appears  to  be  his  duty  to  do  —  what  justice 
requires.  For  instance,  the  law  thus  implies  those  agreements, 
whenever  one  man  has  done  work  or  labor  for  another  ;  or  where 
goods  are  sold  without  the  remuneration  in  the  one  case,  or  the 
price  in  the  other,  being  agreed  on  or  fixed ;  where  one  has  had  or 
received  money  belonging  to  another  without  any  valuable  consid- 
eration given  on  his  part ;  where  one  has  paid,  laid  out  and  expended 
money  for  the  use  of  another ;  or  where,  upon  a  stated  account  be- 
tween merchants  or  others,  a  balance  appears  due  from  the  one 
to  the  other,  though  there  exists  no  actual  promise  to  pay  it.  Where, 
too,  there  is  a  special  agreement,  either  verbal  or  written,  and  the 


THE   CODE   OF   PROCEDURE.  25 

plaintiff  has  done  all  it  requires  on  his  part  he  should  do,  the  law  pre- 
sumes also  a  promise  of  the  defendant  to  pay  the  price  stipulated, 
arising,  as  it  were,  out  of  the  duty  he  owes  the  other  (notwith- 
standing there  is  the  express  agreement  on  which  he  might  have 
sought  his  redress)  in  the  nature  of  a  new  cause  of  action,  founded 
on  this  presumption,  brought  as  if  the  act  done  in  behalf  of  the 
defendant  had  been  done  upon  a  general  request,  without  there 
being  the  express  promise.  It  lies,  too,  upon  all  records,  as  well  as 
upon  all  express  agreements  not  being  under  seal.  It  was  by  means 
of  this  action  of  Assumpsit  that  the  lex  mercatoria  —  at  one  time 
only  known  in  England  as  a  peculiar  custom,  administered  in  its 
own  way  by  the  Mayors  of  the  cities,  particularly  of  London,  or 
else  in  Chancery,  extra  ordinem  —  became  expanded  and  incorpora- 
ted into  the  common  law,  as  it  now  appears  engrafted  and  practiced 
everywhere  so  that  the  parties  to  prommissory  notes  and  bills 
of  exchange  could  be  made  liable  in  the  ordinary  tribunals  to  each 
other,  according  to  their  several  undertakings  on  the  instruments, 
and  the  usages  of  merchants.  Through  the  medium  of  this  action  it 
was  that  the  modern  law  of  insurance  became  solved,  systematized 
and  established. 

In  this  way  it  is,  that  this  action  of  Assumpsit  has  been  shaped 
and  applied  to  all  the  exigencies  of  society  in  instances  of  these 
kinds,  where  the  breach  of  the  contract,  express  or  implied,  was  to 
be  and  could  be  compensated  in  damages  by  way  of  retribution. 
Indeed,  it  may  with  truth  be  said,  that  four-fifths  of  all  the  litigation 
in  this  country  and  England  has  been  administered  or  disposed  of 
by  means  of  this  single  action  of  Assumpsit  and  its  formulas.  These 
formulas  —  as  do  likewise  those  prescribed  in  all  the  other  actions  — 
consist  of  the  series  of  propositions  of  fact  on  which  the  litigants 
respectively  depend,  alternately  made  by  them  in  their  hostile  al- 
tercations, touching  the  subject  in  controversy,  either  denying  each 
other's  preceding  statement,  or  avoiding  the  effect  of  it,  by  one  of 
his  own,  until  the  point  of  fact,  or  of  law,  on  which  the  event  must, 
from  the  very  nature  of  the  case,  turn,  is  evolved  ;  being  separated 
from  all  undisputed  or  immaterial  matter,  and  publicly  expressed 
on  the  record,  as  the  sole  question  to  be  examined  and  tried,  whether 
by  the  jury  or  the  court.  Formulas  of  this  kind  find  their  origin, 
or  reason,  in  being  the  natural  and  logical  steps  of  the  process  of 
reasoning,  or  of  common  sense,  the  minds  of  men  must  take,  */  they 


26  TBE  CODE   OF  PROCEDURE. 

reason  at  all,  on  the  subject  in  dispute,  skillfully  reduced  to  appro- 
priate forms,  and  expressed  in  pure,  clear  and  concise  language, 
surpassingly  so,  every  way  worthy  the  grand  old  figure-heads  who 
have  in  England  or  in  America  signalized  the  track  of  the  common 
law.  Logic,  no  man  believes,  can  of  itself  teach  a  man  to  reason 
rightly ;  but  it  expresses,  settles  and  abbreviates  the  methods  in 
which  he  must  do  it,  if  he  reasons  rightly  at  all — particularly  if  he 
attempts  to  express  publicly  to  others  in  business  the  successive 
steps  he  takes  in  his  own  mind,  as  he  must  do,  in  proceeding  before 
a  judicial  tribunal. 

PLEADING  TO  FORM  ISSUE. 

The  defence,  or  the  reason  the  defendant  may  have  for  the  in- 
jury, or  in  excuse  of  it,  he,  too,  was  to  avail  himself  of,  by  selecting 
and  using  the  formulae  suitable  for  his  own  purpose.  No  matter 
whether  he  demurred  or  pleaded  in  abatement,  or  in  bar  of  the 
plaintiff's  action,  the  method  by  which  he  might  do  either  he  finds 
prescribed  to  his  hand.  Nor  is  he  permitted  to  take  these  steps 
capriciously  or  indifferently  ;  for  as  each  one  stands  for  a  link  of  the 
reasoning,  it  is  inevitable  he  must  follow  in  the  given  case,  pro- 
vided he  reasons  rightly  at  all,  he  is  compelled  to  take  the  one  he 
chooses  by  the  force  of  the  logical  destiny  imposed  upon  him. 

THE  DEMURRER. 

Conceding  the  facts  stated  in  the  plaintiff's  declaration  to  be  true, 
he  can  deny  or  test  its  sufficiency  in  law.  This  objection  he  may 
raise,  and  compel  the  plaintiff  to  meet  it,  before  the  judges  in  banc, 
in  the  very  first  instance,  by  the  use  of  the  formulae  allotted  for  that 
purpose,  the  Demurrer  so  called. 

THE  PLEA. 

But  supposing  he  has  to  concede  the  law  of  the  plaintiff's  case, 
his  only  alternative  is  to  traverse,  or  deny  the  truth  of  the  material 
facts  stated  in  the  declaration  or  some  one  of  them ;  or  else,  if  he 
cannot  do  this,  avoid  the  legal  effect  of  them  by  a  statement  of  some 
new  fact  he  may  have  in  his  own  behalf.  The  formulae  prescribed 
by  which  he  may  do  this  are  called  the  Plea.    In  all  the  actions  speci- 


THE   CODE   OF   PEOCEDUKE.  27 

fied  (and  we  have  seen  that  the  list  comprises  all  which  are  possible) 
there  was,  in  case  he  could  altogether  deny  the  statement  of  the 
plaintiff,  a  fixed  brief  formula,  by  the  use  of  which  he  must  do  it, 
if  he  did  it  at  all.  This  was  called  the  General  Issue,  because  the 
formula  was,  in  each  action,  designed  to  obviate,  as  it  did,  the 
necessity  or  inconvenience  of  a  special  traverse  or  a  denial  of  some 
one  material  fact.  Where  one  of  these  formulae  is  used,  the  truth 
of  all  the  plaintiff's  statements,  or  as  the  case  may  be,  of  the  par- 
ticular fact,  became  the  only  point  or  issue  before  the  jury  to  be 
determined  by  their  verdict.  In  case,  however,  the  defendant 
cannot  deny  the  truth  of  the  plaintiff's  statement,  or  some  material 
part  of  it,  he  can  still,  if  he  has  it  in  his  power,  bring  forward  some 
new  fact,  which  will  avoid,  or  release  him  from,  the  legal  effect  of 
it.  This  he  can  do  (omitting  dilatory  pleas)  as  a  substantive  and 
conclusive  answer  to  the  action  by  stating  it  in  the  shape  of  the 
formula,  provided  for  that  very  purpose,  called  "  special  pleas  in 
bar." 

THE  REPLICATION. 

To  this  the  plaintiff  demurred,  if  he  could,  as  being  insufficient  in 
law,  and  so,  in  that  way,  sought  to  compel  the  defendant  to  test  it 
before  the  judges.  Unless  he  did  this,  he  had  no  alternative  but  to 
deny,  if  he  could,  the  truth  of  the  new  fact ;  and  if  he  did  this  the 
truth  of  it  became  the  sole  issue,  or  point  of  contestation,  before 
the  jury.  But  if  he  could  not  deny  the  fact,  he  might,  if  it  hap- 
pened that  he  had  it,  avail  himself  of  any  other  new  fact,  sufficient 
for  the  purpose,  by  stating  it  in  the  formula  called  the  Replication, 
designed  for  his  use,  relying  on  its  legal  effect  to  meet  the  plea 
in  bar. 

THE  REJOINDER. 

Then  again  the  defendant,  if  he  did  not  question  the  legal  effect 
of  the  Replication  —  as  he  might  if  he  chose  —  could  either  deny  the 
truth  of  the  new  fact  by  using  the  formula  called  the  Traverse, 
letting  the  event  of  the  struggle  depend  on  its  truth  ;  or  else,  in- 
stead of  thus  merely  traversing  it,  he  stated,  in  the  formula  called 
the  Rejoinder,  in  his  own  behalf,  some  other  new  fact  whose  legal 
effect  would  avoid  the  Replication. 


28  THE   CODE   OF   PROCEDURE. 


THE  SUBBEJOINDEE. 


The  plaintiff  is  then  again  compelled,  if  he  could  not  question  the 
legal  effect  of  the  rejoinder,  either  to  deny  it,  or  else  state  in  his 
own  behalf  some  other  new  fact  which  would  in  law  avoid  it.  He 
did  this  by  the  formula  called  a  Surrejoinder. 

THE  BE  BUTTER  AND  SUBBEBUTTEB. 

To  meet  this,  in  his  turn,  the  defendant,  if  he  conceded  its  legal 
effect,  might,  if  he  could,  deny  the  new  fact,  or,  confessing  it,  avoid 
its  force  in  law  by  again  stating  some  new  fact,  using  the  formula, 
designed  for  his  purpose,  called  a  Rebutter ;  which  the  plaintiff  could 
again  meet,  either  by  denying  its  truth,  or  else  avoid  its  legal  effect 
by  some  new  fact,  using  the  formula  called  the  Surrebutter. 

THE  ISSUE. 

The  parties,  in  this  way,  are  compelled  to  proceed  in  this  logical 
contest,  until  the  matter  to  be  decided,  whether  it  be  one  of  law  or 
fact,  was  brought  to  a  point.  On  this  point  of  law,  or  fact,  the  con- 
troversy turned,  as  on  a  pivot ;  and  when  it  was  thus  evolved,  by 
the  act  of  the  litigants,  who  thus  far  had  been  the  only  actors  in 
the  scene,  it  was  called  the  Issue. 

OF  THE  NATUBE  OF  PLEADINGS. 

Men  must  reason  with  one  another,  if  they  do  at  all,  on  a  subject  of 
litigation  with  which  they  attempt  to  deal,  according  to  the  rules 
of  logic  by  which  reasoning  of  all  kinds,  in  any  quarter,  must  be 
tested,  expressed  and  exemplified.  The  object  of  these  formulae  is 
to  provide  the  means  of  compelling,  as  well  as  enabling,  the  parties 
to  any  controversy,  by  their  own  acts,  to  tests  the  merits  of  it,  and 
eliminate  the  essential  question.  It  is  to  compel  them  to  do  this 
beforehand,  and  to  express  it  in  the  record.  These  formulae  are  al- 
tercations, logically  made,  expressing  the  series  of  steps  which  the 
mind  has  to  take  in  analyzing  the  subject,  in  clear,  brief,  settled 
words.  They  are  the  rationale  of  the  process  of  judicial  investiga- 
tion, and  reduce  the  methods  of  it  to  a  science,  of  which  the  busi- 
ness of  ordinary  litigation  is  susceptible,  applying  it,  as  such,  to  that 


THE   CODE   OF  PROCEDURE.  29 

inexorable  department  of  human  labor.  Instead  of  perplexing  or 
embarrassing,  these  formulae  —  the  marvelous  result  of  experience 
and  necessity  —  are  meant  to  lead,  as  they  will  if  used,  the 
litigants,  step  by  step,  in  the  light  of  true  argumentation ;  yes,  not 
only  lead  them,  but  compel  them  to  keep  within  its  rigorous  limits, 
and  to  observe  the  inflexible  rules,  which  in  every  era  of  civilization 
ought  to  be  exacted  of  those  who  attempt,  in  a  public  tribunal,  to 
reason  logically,  skillfully  and  successfully.  Whatever  the  plaintiff 
states  in  his  Replication,  or  afterward  in  his  Surrejoinder,  or  Surre- 
butter, it  is  indispensable  that  the  new  matter  should  tend  to  sus- 
tain his  case,  as  originally  it  appeared  in  his  declaration.  So,  too, 
whatever  the  defendant  might  state  in  his  Rejoinder,  or  Rebutter, 
or  afterward,  must  sustain  or  fortify  his  Plea.  Neither  can  be  al- 
lowed to  vary  or  change  the  cause  of  action,  or  defence,  he  had  in 
the  first  instance  set  up. 

Nor  might  the  plea  or  subsequent  pleading  be  double,  or  argu- 
mentative, or  inconsistent.  The  allegations  of  all  the  pleadings  had 
to  be  confined  to  matter  of  fact  only  —  the  evidence  of  the  facts  not 
being  permitted  to  be  stated.  The  scheme  of  reasoning  by  formulae 
forces  the  parties  who  are  supposed  the  best  to  know  the  truth,  to 
search  out  and  to  agree  upon  the  question  o£  law  or  fact,  on  which 
alone,  as  they  conceive  it,  the  merits  of  their  controversy  depend, 
or  upon  which  they  are  willing  to  let  it  depend ;  and  to  do  this  at 
first,  before  they  seek  the  trial  and  determination  of  either.  The 
object  is  to  bring  about  —  by  the  act  of  the  parties  —  a  public  ad- 
justment, or  statement  on  the  record,  of  the  point  they  deem  essen- 
tial, expressed  in  these  well  known  and  settled  formulae,  that, 
when  the  judge  or  the  jury  are  troubled  with  it,  there  shall  be  no 
doubt  of  what  it  is,  and  that  they  may  dispose  of  it  with  ease,  pre- 
cision and  celerity. 

Every  case  has,  as  between  the  parties,  some  point  of  contesta- 
tion. Very  few,  ever,  have  more  than  one.  This  must  be  ascer- 
tained by  somebody,  and  by  some  mode,  at  some  stage  of  the  liti- 
gation. If  it  is  not  determined  by  this  process  of  Special  Pleading  by 
the  formulae,  by  the  parties,  before  any  trial,  the  essential  question 
must  be  ascertained,  afterward,  either  on  the  trial  by  the  alterca- 
tions of  the  lawyers  with  the  judge,  and  with  each  other  orally,  or 
still  afterward,  in  the  shape  of  Bills  of  Exceptions,  or  Cases  on  Ap- 
peal, etc. 


30  THE  CODE  OF   PEOCEDUEE. 

Hereafter  we  will  more  particularly  advert  to  the  advantages  of  a 
system  of  logical  or  judicial  formulae,  or  Special  Pleading,  for  the 
solution  and  dispatch  of  the  business  of  litigation.  We  are  accus- 
tomed to  hear  it  scofled  at.  The  sneer  at  the  use  of  the  subtle  and 
precise  seems  embodied  in  the  epithet  M  Special  Pleading."  It  is 
constantly  used  for  a  term  of  reproach  or  contumely.  He  who  does 
this  ignorantly  will  shrink  away  from  his  own  folly,  as  soon  as  he 
reflects  that  there  can  be  no  reasoning  on  any  subject,  unless  it  be 
special ;  and  that,  therefore,  no  subject  of  litigation  can  be  admin- 
istered or  disposed  of  in  a  civilized  State,  in  any  enlightened  sense, 
by  those  whose  duty  it  is  to  deal  with  it,  unless  they  take  the  series 
of  steps  in  the  process  of  reasoning  which  the  nature  of  the  case  de- 
mands. Of  course,  if  this  be  allowed,  then  it  is  just  the  special  rea- 
soning, or  the  Special  Pleading,  so  called,  which  men  sometimes 
assume  to  contemn  without  knowing,  in  truth,  what  they  do,  or 
why.  Special  Pleading  must,  therefore,  be  used  in  some  form,  no 
matter  how  laborious,  or  irksome,  or  subtle.  You  never  can  get 
rid  of  the  task.  Who  shall  do  it,  or  by  what  means,  or  when  ;  and 
when  done,  how  it  shall  best  be  done  and  the  best  expressed; 
these  only  are  the  questions  to  be  mooted  and  settled. 

Nor  is  it  at  all  remarkable  that  all  the  subjects  of  litigation,  and 
all  the  defences  which  can  possibly  arise  capable  of  being  made  to 
them,  should  thus  be  susceptible  of  being  classified  and  expressed 
in  the  formulae  allotted  to  each  species,  so  briefly  and  concisely,  and 
to  the  rules  of  which  every  man's  private  strife  must  accommodate 
itself.  Let  any  one  reflect,  if  he  please,  how  perpetually  the  actions 
of  men  in  a  civilized  commonwealth  repeat  themselves,  and  to  what 
an  extraordinary  extent.  Whether  it  be  contracts  or  torts,  how 
very  few  the  species  of  each  kind.  Of  the  individuals  in  each  spe- 
cies, how  constant  and  everlasting  the  similitude,  the  one  to  the 
other.  The  defences,  too,  it  is  possible  to  make,  are  also  very  re- 
markably few.  Those  to  actions  on  contracts,  besides  those  which 
arise  on  a  mere  denial  of  a  fact  in  the  declaration,  do  not  exceed 
three  dozen.  Nor  do  those  in  actions  for  torts  exceed  some  two 
dozen.  Most  of  them,  too  —  though  each  may  now  and  then  oc- 
cur —  do  not  occur,  except  at  long  intervals,  so  that  the  defences, 
most  likely  or  usually  made,  do  not  exceed  one  half  of  the  whole 
list.  Be  they  more  or  less,  like  the  injuries  or  actions,  they  can 
also  be  easily  classified,  and  each  one  of  them  allotted  its  appropri- 


THE   CODE   OF  PROCEDURE.  31 

ate  formula,  in  which,  for  the  convenience  of  all  concerned,  if  there 
were  no  other  reason,  it  shall  be  constantly  stated.  The  conse- 
quences of  a  breach  or  non-performance  of  a  contract,  or  of  the 
commission  of  a  wrong,  are  similar,  whatever  the  nature  of  the  ac- 
tion in  which  the  compensation  is  sought ;  so  that  the  criterion  or 
measure  of  it  is  compensatory  damages  in  money,  for  which,  follow- 
ing the  verdict,  the  judgment  is  given  as  a  matter  of  course,  to 
which  an  appropriate  formula  is  also  allotted,  and  also  to  the  exe- 
cution. 

ORIGIN  OF  SPECIAL  PLEADING. 

This  system  of  distributing  the  subjects  of  litigation  into  actions, 
according  to  the  nature  and  object  of  each  class,  naming  them ;  and 
of  allotting  to  each  its  appropriate  formulae  to  which  the  parties 
should  accommodate  their  strife,  and  in  which  they  are  compelled 
to  conduct  their  mutual  allegations  till  these  result  in  the  decisive 
point,  has  been  thought  to  have  arisen  in  England.  It  has  often 
been  the  boast  of  its  jurists.  Modern  researches  have,  however, 
demonstrated  it  to  have  been  derived  from  the  Romans.  It  is  al- 
most literally  the  transcript  of  the  mode  in  which  the  great  mass  of 
litigation  ( that  is,  the  common  or  ordinary  kind  )  was  administered 
before  the  Pretors  at  Rome  and  in  the  Provinces,  from  the  Twelve 
Tables  451  B.  C.  to  Constantius  350  A.  D.  —  a  period  of  eight  cen- 
turies. With  them  all  actions,  stricti  juris,  correspond  to  our  ac- 
tions at  law,  so  called.  The  Pretor  kept  a  register  of  the  formulae ; 
and  when  the  actor,  the  plaintiff,  commenced  his  suit  he  pointed 
out  to  him,  the  Pretor,  in  what  particular  form  he  intended  to  pro- 
ceed. Every  action  was  conducted  down  to  judgment  and  execu- 
tion according  to  these  certain  definite  forms  of  which  the  litigants 
were  compelled  to  make  use.  As  Cicero  expresses  it  ( pro  Q,  Ros- 
cio,  §  8  ) :  Sunt  jura,  sunt  formula},  de  omnibus  rebus  constitute, 
ne  quis  aut  in  genere  injuria},  aut  in  ratione  actionis,  errare  possit. 
JSxpressos  enim  sunt  ex  uniuscujusque  damno,  dolore,  incommodo, 
calamitate,  injuria,  publico}  a  pretore  formula?,  ad  quas  privata  lis 
accommodatur.  The  language  of  the  Pandects  is :  Deinde  his  le- 
gibus  (Leg.  12  )  actiones  compositor  sunt,  quibus  inter  se  homines 
discepterent ;  quas  actiones  ne  populus  prout  vellet  institueret,  certas 
solennesque  esse  voluerunt ;  et  appellatur  ha3c  pars  juris,  legis  ac- 
tiones, id  est,  legitime*}  actiones.    F.  F.  1,  2,  §  6,  3  Blackstone,  116. 


32  THE   CODE   OF  PROCEDURE. 


THE  ROMAN  SYSTEM. 


These  set  forms  for  actions  were  introduced  thus  early  by  the 
Romans,  probably  after  the  example  of  the  Greeks,  and  contem- 
poraneously with  the  Twelve  Tables.  What  is  worth  while  to 
notice,  as  remarkable,  is  that  the  method  of  conducting  civil  pro- 
ceedings in  this  technical  way  —  as  we  so  often  hear  it  affirmed  ;  or, 
in  other  words,  by  Special  Pleading  —  was  with  them  substituted 
in  place  of  a  more  ancient  system  of  pleading  at  large,  or  circum- 
stantially, as  being  less  subject  to  mistakes,  or  subtleties,  or  intri- 
cacies, or  perils  of  divers  kinds !  They  classified  these  actions 
according  to  our  own  distribution  of  the  subjects  of  litigation  ;  and, 
in  these,  it  was  necessary  to  state  the  facts,  of  which  each  party 
could  avail  himself,  in  the  appropriate  formulae  provided  for  the 
purpose.  Each  party,  if  he  could,  avoided  or  met  the  prior  state- 
ment of  the  other  by  one  of  his  own.  The  reus,  or  defendant,  might 
deny  the  plaintiff's  case,  %b«,  could, '  confessing  it,  plead.  They 
had  their  dilatory  pleas  and  peremptory.  The  latter  was,  prima 
facie,  a  conclusive  bar  to  the  action.  To  avoid  it,  the  plaintiff,  if 
he  could,  might  introduce  some  new  fact.  This  he  did,  and  the 
formula  he  used  was  called  a  replicatio.  The  defendant  again,  if  he 
could  not  deny  this,  might  be  able  to  avoid  the  legal  effect  of  it, 
and  thus  restore  the  effect  of  his  own  plea,  by  some  new  or  ad- 
ditional fact.  If  so,  he  could  put  in  his  duplicatio  (rejoinder). 
Then  once  more,  in  a  similar  manner,  he  might  be  met  by  the  plain- 
tiff with  his  triplicatio  (surrejoinder).  The  parties  could  proceed, 
in  this  way,  till  the  matter  to  be  decided,  or  necessary  to  be  decided, 
was  brought  to  a  point.  This  was  called  litis  contestatio.  These 
alternate  allegations  were  successively  entered  in  the  record  before 
the  Pretor  under  his  superintendence,  in  jure ;  from  which  point 
the  action  or  steps  following  the  Writ  proceeded  before  the  judges, 
recuperatores,  corresponding  somewhat  to  our  jury,  injudicio. 

The  record,  which  contained  the  series  of  formulae  the  litigants 
had  used,  presented  the  single  question,  these  pleadings  had  ended 
in  eliminating,  to  these  recuperatores,  which  they  were  to  decide  as 
the  sole  point  on  which  the  controversy  turned,  and  on  which  the 
parties  were  either  compelled  or  were  mutually  willing  to  rest  the 
event.     In  this  manner  all  actions,  strieti  juris,  were  conducted  at 


THE   CODE  OF  PEOCEDUEE.  33 

Rome,  and  throughout  the  provinces,  until  Constantius,  like  our 
own  reformers,  abolished  this  system  of  Special  Pleading  by  means 
of  these  compulsory  formulae.  With  it,  however,  and,  it  is  fairly 
presumable,  because  he  thought  the  reformation  inconsistent  with- 
out he  went  still  further,  he  also  abolished  the  trial  by  the  judges, 
the  recuperatores,  or,  in  other  words,  the  trial  by  jury.  It  was  not 
till  after  this  improvement  that  causes  lasted  so  long,  that  the 
wretched  litigants  became  accustomed  to  exclaim  in  despair :  "  their 
"lawsuits  were  immortal  and  exceeded  the  term  of  man's  life." 
(  Properandum  nobis  visum  est,  ne  lites  fiant  pcene  immortales  et 
vitce  hominum  modum  excedant,  etc.)  As  the  result  of  this  reform, 
all  causes  were  conducted  before  the  Pretor  or  Preses,  as  he  came 
to  be  called,  not  only  in  jure,  but  in  judicio,  being  the  manner  the 
civil  law,  as  it  is  named,  has  ever  since  been,  everywhere  on  the 
continent,  administered. 

We  derive  also  our  Equity  Practice,  and  the  mode  of  proceeding 
before  the  Chancellor  from  the  same  source.  The  vast  proportion 
of  all  Roman  litigation  was  for  damages,  and  was  transacted  in 
these  actions  in  the  manner  we  have  described.  There  was,  how- 
ever, co-existing,  the  lex  Pretoria,  or  lex  honorarium,  by  which,  in 
special  cases,  the  Pretor  was  accustomed  to  grant  equitable  relief, 
acting  administratively,  or  dispensively,  or  extra  ordinem,  in  cases 
whereby  the  ordinary  method  of  compensating  retribution,  stricti  ju- 
ris, he  could  not  do  what,  owing  to  consequences  which  would  be 
in  that  way  remediless,  the  principles  of  natural  justice  required. 


THE  ENGLISH  SYSTEM. 

Originally,  it  is  assumed,  these  special  pleadings,  or  the  succes- 
sive statements  the  parties  were  compelled  to  make  before  the  Pre- 
tor for  the  solution  of  their  controversy  in  actions  stricti  juris,  were 
oral  in  open  court,  as  they  were  once  also  before  the  English  judge 
in  corresponding  actions  at  common  law.  The  English  judges,  like 
the  Roman  Pretor,  are  supposed  to  have  passed  judgment  on  the 
propriety  or  validity  of  these  statements,  as  each  was  propounded 
by  the  litigants.  An  officer  of  the  court  called  a  "  Prothonotary  " 
entered  them  in  what  was  named  the  roll.    In  England  these  alter- 


■   , 


34  THE   CODE   OF   PROCEDURE. 

eating  statements  were  not  reduced  to  writing  by  the  lawyers  till 
the  reign  of  Edward  III.  But  whether  done  verbally  or  in  writing, 
the  scheme  operated  to  clear  the  contest,  at  every  step,  of  all  undis- 
puted or  immaterial  matter,  and  extracted  out  of  the  crude  mass, 
directly  or  indirectly,  usually  or  apparently,  connected  with  it,  at 
the  end,  some  simple  proposition  of  law,  or  fact,  to  be  by  itself  re- 
ferred to  the  judge  or  the  jury  for  decision. 

Practically,  it  was  reasoning  aloud  on  the  subject  of  litigation ; 
applying  to  it  that  analytical  process  by  which  the  mind,  whatever 
be  the  object  of  its  consideration,  arrives  at  the  essential  question, 
or  the  one  really  in  dispute.  Now,  to  do  this  in  public,  or,  rather, 
to  compel  the  litigants  themselves  to  resolve  the  facts  on  which 
they  alternately  rely,  into  this  process  on  paper,  in  detached  and 
formal  propositions,  setting  them  in  array  against  each  other,  till, 
by  the  logical  conflict,  the  state  of  the  question  is  finally  determin- 
ed, is  the  grand  medium  of  the  business  of  litigation,  as  it  has  been 
in  England  and,  more  or  less,  in  our  own  country,  indissolubly  con- 
nected, as  it  manifestly  is,  with  the  preservation  or  usefulness  of 
the  trial  by  jury. 

No  matter  how  variously  the  fact  may  be  accounted  for,  this  old 
Roman  scheme  of  distributing  and  transacting  the  business  of  liti- 
gation by  these  few  actions,  survived  alone  in  England  of  all  the 
provinces  of  the  Empire.  Of  the  Empire  she  was  a  province  for 
more  than  three  centuries.  With  it,  too,  there  seems  also  to  have 
survived  on  English  ground,  somehow  or  other,  and  in  the  great- 
est spirit  and  measure,  the  unyielding  respect  for  the  rights  of 
person  and  property  which  distinguished  the  Romans  in  their  best 
days. 

No  doubt  the  tendency  of  this  scheme  of  actions  seems  to  be  to 
put  these  rights  to  the  greatest  extent  possible  beyond  the  arbitrary 
control  of  the  judge;  and,  consequently,  that  of  the  sovereign. 
Ideas  of  this  kind,  it  is  probable,  may  have  prevailed.  Its  intro- 
duction, or  rather  its  preservation,  in  England,  ought,  beyond  the 
perpetuating  vigor  of  the  habits  of  a  people,  to  be  ascribed  rather 
to  the  sagacious  learning  of  those  minds,  who,  the  earliest,  shaped 
its  later  civilization ;  and  who  saw,  as  we  now  cannot  help  seeing, 
the  principles  of  logic  practically  and  most  skillfully  applied  to  this 
most  imperious  branch  of  human  labor,  the  business  of  litigation  ; 


THE   CODE"  OF  "PROCEDURE.  35 

that  thereby  the  solution  of  it  may  be  prepared,  cleared,  abbreviat- 
ed and  dispatched.  Fancifully,  and,  perhaps,  more  ingeniously  than 
philosophically,  some  have  supposed  the  Englishman,  in  the  trans- 
action of  his  affairs,  acts  like  the  Roman  as  well  as  thinks  method- 
ically, and  that  his  inveterate  attachment  to  these  logical  formulse, 
in  the  administration  of  the  law,  is  rather  owing  to  this  peculiarity 
of  his  nature. 


ORIGIN  OF  COURTS  OF  EQUITY. 

In  this  summary  we  have  referred  to  the  lex  Pretoria,  or  lex  hon- 
orarium (for  these  terms  were  used  indifferently)  as  corresponding 
to  our  "  Equity,"  expressing  the  mode,  extra  ordinem,  by  which 
the  Pretor  was  accustomed  to  give  what  was  known  as  "  equitable 
"  relief,"  which  he  could  not  do  in  the  ordinary  actions,  stricti  juris. 
Indeed,  every  Pretor,  entering  on  the  duties  of  his  office,  was  in 
respect  of  it,  accustomed  to  propound,  in  what  was  called  an 
"  edict,"  the  equitable  principles  he  intended  to  administer  during 
his  year.  Whatever  these  were  he  was  bound  to  adhere  to  them. 
Although,  it  seems,  not  bound  to  do  this  beyond  custom,  each  Pre- 
tor came  to  adopt  or  practice  the  "  edict "  published  by  his  prede- 
cessor, so  that  these  Pretorian  edicts  were  in  time  worked  up  into 
an  equitable  code.  In  the  reign  of  Hadrian  A.  D.  118,  one  was  ac- 
tually in  form  compiled  from  them  called  the  "  Perpetual  Edict," 
embodying  this  lex  Pretoria.  Prior  to  this  edict  and  especially  in 
the  earliest  stages  of  its  exercise,  this  power  was  of  a  legislative 
nature,  rather  than  of  a  judicial,  —  for  the  reason  that,  from  time 
to  time,  as  some  exigency  called  for  its  interposition,  the  Pretor 
either  took  a  step  entirely  new,  or  moulded  an  old  rule  to  meet  or 
remedy  or  avert  the  injustice  likely  to  be  done,  if  the  parties  were 
left  to  the  usual  actions,  stricti  juris.  No  matter  how  or  by  whom 
such  an  extraordinary  power  had  been  exercised  in  England  prior 
to  the  reign  of  Edward  III.,  we  find  that  that  monarch  —  instructed, 
there  is  no  doubt,  by  those  then  learned  in  the  Civil  Law  of  Rome 
at  his  Court  —  by  an  Act  or  Ordinance  referred  "  All  such  mat- 
"  ters  as  were  of  Grace  to  be  dispatched  by  the  Chancellor  or  the 
"  Keeper  of  the  privy  seal."  Ever  since  this  ordinance,  at  least, 
there  has  been  in  that  country  established  what  we  know  as  the 
"  Court  of  Chancery,"  or  a  regular  court  for  administering  this  kind 
3 


36  THE   CODE   OF   PROCEDURE. 

of  relief  in  all  matters  whatsoever  requiring  the  exercise  of  the  pre- 
rogative of  Grace,  as  distinguished  from  the  jurisdiction  of  the  com- 
mon law  which  originally  was  founded,  as  we  have  seen,  on  special 
Writs  and  Actions  in  redressing  all  civil  injuries  admitting  of  com- 
pensation in  damages,  stricti  juris. 

Nothing  more  intelligently  explains  the  distinction  between  Law 
and  Equity  than  enumerating  some  of  the  advantages  which  have 
been  engrafted  on  the  common  law  method,  —  the  action  at  law — by 
the  interposition  of  the  Court  of  Equity.  It  was,  as  we  have  seen, 
an  authority  used  in  England,  which,  at  firsts  like  the  lex  Pretoria 
at  Rome,  was  in  the  nature  of  the  legislative.  It  was  for  a  long 
time  exercised  in  that  way,  the  Chancellor  immediately  represent- 
ing the  King  himself,  or  the  sovereign  power,  acting  in  many  par- 
ticulars rather  like  a  legislative  or  law-making  body,  or  rather  law- 
dispensing  power.  We  owe  to  it,  in  respect  of  a  great  many  prin- 
ciples, a  great  part  of  what  is  now  deemed  common  law,  or  strict 
law.  New  and  extraordinary  as  might  be  the  principle  on  which, 
or  in  behalf  of  which,  the  Court  of  Equity  in  the  first  instance  in- 
terposed its  authority,  the  precedent  came  at  length  to  be  convert- 
ed into  an  old  rule,  and  was  adopted  by  the  Court  of  Law  as  its 
own. 

It  is  in  this  sense  that  we  hear  it  said  that  the  law  has  been  con- 
tinually gaining  ground  upon  the  Court  of  Equity.  The  penalty  on 
obligations  to  pay  money  can  no  longer  be  recovered  at  law,  be- 
cause, abandoning  its  own  rule,  it  came  to  adopt  that  of  the  Court 
of  Equity,  which  had  for  so  long  a  time  interfered  with  its  uncon- 
scionable judgments  in  such  cases,  in  behalf  of  the  debtor,  and  com- 
pelled his  creditor  to  discharge  the  penalty  on  being  paid  his  prin- 
cipal and  interest.  Equity  interposed,  if  an  acquittance  had  been 
taken  and  lost,  or  a  bond  were  burned  or  lost  by  accident  or  mis- 
take, and  compelled  a  release  or  a  payment,  as  the  case  might  be, 
the  same  as  could  have  been  obtained  at  law  had  the  instrument 
existed,  till  the  court  of  law  adopted  the  same  rule. 

The  Chancellor  decided  the  surety  discharged,  where  the  creditor 
had  entered  into  a  contract  with  the  principal  debtor  to  give  time, 
till  the  court  of  law  concluded  to  do,  and  does  do,  the  same  thing : 
lex  sequitur  equitatem.  It  interposed  and  compelled  a  set-off,  which 
might  not  be  allowed  at  law,  because  it  would  have  been  trying  an 
action  without  the  authority  of  a  writ,  till  Parliament,  adopting  the 


THE   CODE   OF   PROCEDURE.  37 

principle,  authorized  the  same  step  to  be  taken  at  law.  It  also  com- 
pelled persons  liable  for  a  common  debt  or  duty  to  contribute  propor- 
tionably  to  one  or  more,  who  had  paid  the  debt  or  done  the  duty, 
till  ultimately  the  principles  upon  which  the  Court  of  Equity  gave 
this  relief  were  adopted  at  common  law.  We  owe  it  to  the  inter- 
position of  the  Chancellor  that  the  Courts  of  Law  have  long  since 
assumed  a  species  of  equitable  jurisdiction  over  their  own  proceed- 
ings by  staying  the  ppstea,  or  the  judgment,  or  the  execution,  until 
the  party  shall  have  complied  with  the  terms  similar  to  those  which 
would  in  like  cases  have  been  imposed  by  the  former. 

The  use  of  the  action  of  ejectment  to  try  titles  at  law  was  achiev- 
ed, because  the  Chancellor  was  accustomed  to  compel  the  defendant, 
wrongfully  in  possession  of  the  land,  to  surrender  it  to  the  tenant 
—  for  life,  or  years  —  whom  he  had  ousted,  and  who  had  recovered 
against  him  his  judgment  at  law  for  the  damages  for  the  trespass. 
Originally,  courts  of  law  would  not  or  could  not  change  the 
venue  until  they  adopted  the  rules  of  the  Court  of  Equity  on  the 
subject,  by  which  it  had  compelled  them  to  do  it.  So,  no  recover- 
ies were  had  at  law  for  the  common  assumpsits,  or  executory  prom- 
ises and  implied  obligations.  In  these  cases  resort  was  had  to  the 
Chancellor,  till  the  court  at  law  assumed  the  principles  by  which  he 
had  been  accustomed  to  give  relief.  It  contrived  and  moulded  the 
action  of  Trespass  on  the  Case,  and  soon  by  one  branch  of  it,  As- 
sumpsit, it  finally  ravished  to  itself  the  exclusive  jurisdiction  in  all 
that  innumerable  class  of  transactions. 

These  instances  of  the  law  following  Equity,  and  accepting  the 
ameliorations  of  the  latter,  could  be  indefinitely  multiplied.  These 
are  enough  to  show  the  necessity  and  usefulness  of  the  exercise  of 
what  is  called  equitable  power,  or  jurisdiction,  in  the  English  sys- 
tem of  Jurisprudence  and,  of  course,  in  our  own.  Its  object  and 
scope  are  in  interposing  in  special  cases,  on  special  grounds,  lest  in- 
justice be  done,  consequentially  remediless  at  law,  because  this 
scheme  of  procedure  is  by  actions  for  damages  —  these  being  the  or- 
dinary means  of  punishment  and  retribution  after  the  mischief  is 
done,  and  operating  remedially. 


STATUTORY  TRANSFER  OF  JURISDICTION. 
In  more  modern  times,  in  those  new  cases  needing  such  interpo- 


38  THE   CODE   OF  PROCEDURE. 

sition,  which  may  happen  to  arise,  the  authority  for  granting  re- 
lief is  more  generally  sought  for  directly  from  the  legislative  power. 
Our  Revised  Statutes  transferred  from  the  Court  of  Equity  to  the 
Court  of  Law,  various  proceedings  which  before  had  belonged  ex- 
clusively to  the  former.  Of  these,  let  us  mention,  by  way  of  ex- 
ample, the  steps  to  compel  a  party  to  produce  or  discover  books, 
papers  and  documents  in  his  possession  or  power,  relating  to  the 
merits  of  any  suit  or  defence  ;  proceedings  to  compel  the  determina- 
tion of  claims  to  real  property ;  to  discover  the  death  of  persons 
upon  whose  lives  any  particular  estate  may  depend ;  to  take  condi- 
tionally the  testimony  of  witnesses,  within  this  states  to  perpetu- 
ate testimony,  etc.  The  principles  peculiar  to  this  Court  of  Equity, 
touching  a  mortgage  on  land  to  secure  a  debt,  have  so  long  prevail- 
ed that  they  are  acknowledged  and  adopted  at  law.  The  Revisers 
could,  it  is  submitted,  with  equal  sagacity  have  transferred  the 
jurisdiction,  in  case  of  a  mortgage,  to  the  Court  of  Law,, where  a 
judgment  on  the  bond  or  other  evidence  of  the  debt,  and  a  sale 
of  the  land  on  the  Execution,  as  in  case  of  other  judgments,  could 
have  been,  as  it  now  might  be,  substituted  for  the  cumbersome, 
expensive  and  useless  method  of  a  foreclosure  and  sale,  so-called, 
in  Equity. 

By  what  court  these  and  such  like  objects  might  be  obtained,  had 
become,  in  1828,  a  matter  of  indifference,  except,  perhaps,  one  of 
expediency  or  convenience,  because  the  principles  or  the  special 
circumstances  on  which  the  Chancellor  had  been  accustomed  to  in- 
terpose, were  become  old  and  well-known  rules,  too  fixed  and  cer- 
tain to  be  questioned.  Indeed,  the  duties  these  were  exacting  had 
become  ministerial  or  semi-ministerial  rather  than  judicial.  The 
rules  governing  the  Court  of  Equity  had  then  been  so  long 
and  thoroughly  established  in  respect  of  some  other  subjects  which 
the  Revisers  seem  to  have  deemed  as  still  of  equitable  jurisdiction, 
treating  them  as  such,  Jxft  which,  for  aught  of  any  principle  or 
necessity,  could  have  been  committed,  for  a  like  reason,  to  the 
Court  of  Law.  The  Revisers  assumed,  what  appears  in  all  experi- 
ence, that  no  enlightened  system  of  jurisprudence  should  exist  with- 
out this  power  lodged  somewhere,  to  prevent  occasionally,  in  cer- 
tain cases  where  it  is  possible,  in  behalf  of  the  citizen,  the  occur- 
rence of  remediless  injustice,  were  he  left,  as  he  otherwise  must  be, 
to  the  ordinary  and  coarser  redress  he  might  at  last  have  in  his 


THE   CODE   OF  PROCEDURE.  39 

action  for  compensatory  damages  at  law.  They  adopted  the  dis- 
tinct equitable  system,  then  and  theretofore  established  in  England 
and  our  own  country,  and  its  well  known  veteran  mode  of  proceed- 
ing which  distinguishes  hers  and  our  own  judicial  polity  from  that 
of  every  State  in  Europe. 

So,  too,  the  Revisers  approved  the  common  law  method  of  pro- 
ceeding in  all  that  class  of  litigation  whose  object  and  measure  are 
damages.  Doing  this,  too,  they  adopted  the  system  of  Special 
Pleading  by  means  of  the  prescribed  formulae,  as  we  have  explained 
it,  and  as  it  then  was  practiced  in  England,  whence  we  derived  it. 
But  though  they  did  this,  they  at  the  same  time  abolished  the  sys- 
tem of  Writs  and  the  distinction  existing  between  them  by  means 
of  which  the  subjects  of  this  kind  of  litigation  had  originally  been 
distributed,  and  the  various  actions  they  gave  rise  to,  were  distin- 
guished and  named.  The  reason  of  the  Writs  had  become  obsolete, 
but  the  law  of  actions  they  originated,  the  distribution  of  the  sub- 
jects of  them,  their  names  and  formulae,  these  illustrious  and  ven- 
erable men  sedulously  acknowledged  and  preserved.  They  provid- 
ed that  all  the  actions  for  the  recovery  of  any  debt,  or  damages  only, 
should  be  commenced  against  all  persons  not  privileged  from  arrest 
by  a  capias ;  against  corporations  by  summons ;  and  against  all 
persons  whomsoever  by  simply  filing  with  one  of  the  clerks  of  the 
Supreme  Court,  or  of  the  Common  Pleas,  a  declaration,  entering  a 
rule  requiring  the  defendant  to  plead  to  it,  and  serving  a  copy  of 
both  instruments  upon  him.     (2  R.  S.,  34V.) 

Men  must  fail  to  devise  any  steps  simpler  than  these  for  com- 
mencing an  action.  In  respect  of  what  was  then  also  known  as  the 
common  law  actions  no  change  was  made,  excepting  in  Ejectment, 
Detinue  and  Replevin.  The  former  was  treated  as  being  a  Real 
Action.  The  harmless  fiction  of  the  lease  and  ouster  was  abolished, 
and  a  formula  prescribed  by  which  it  was  to  be  alleged  :  u  That  on 
"  some  day  after  his  title  had  accrued,  he,  the  plaintiff,  was  possess- 
"  ed  [as  much  a  fiction  in  most  cases  as  the  old  one]  of  the  premises 
"  (in  question),  and  being  so  possessed,  the  defendant  on  some  day 
"  afterward  entered  into  the  possession  and  unlawfully  withheld 
"  from  him  the  possession,  to  his  damages,"  etc.  This  action  was 
to  be  commenced  by  serving  the  declaration  with  a  notice,  that  it 
would  be  filed  on  a  particular  day ;  that  then  a  rule  would  be  en- 
tered requiring  the  defendant  to  plead  to  it,  and  in  case  he  did  not, 


40 


THE   CODE   OF   PROCEDURE. 


a  judgment  would  be  by  default  entered  against  him.  The  formula 
prescribed  for  the  defendant  to  plead  was  simply,  "  that  he  was  not 
"  guilty  of  withholding  the  premises." 

The  Revisers  also  united  Detinue  and  Replevin.  They  prescrib- 
ed the  formula  of  the  writ  by  which  the  action  might  be  commenced 
either  for  the  wrongful  taking  and  detention ;  or  for  the  wrongful 
detention.  This  writ  the  plaintiff  could  have  executed,  provided  he 
annexed  to  it  his  affidavit  that  the  property  was  his  and  he  was  en- 
titled to  the  possession  of  it,  and  also  delivered  to  the  sheriff  his 
bond  in  the  penalty  of  double  the  value,  with  sufficient  sureties,  con- 
ditioned that  he  would  prosecute  the  suit  without  delay  ;  and  that 
if  the  defendant  recovered  judgment  he  would  return  the  property, 
if  it  be  adjudged,  and  pay  all  such  sums  as  might  be  recovered 
against  him  for  any  cause  whatever. 

Of  this  writ  and  of  the  execution  of  it,  the  defendant  was  to  be 
apprised  by  a  summons,  briefly  informing  him  of  the  particulars. 
The  declaration  had  to  conform  to  the  writ,  and,  if  it  was  for  the 
wrongful  detention  of  the  goods,  the  formula  prescribed  was  the  al- 
legation with  the  requisite  certainty  of  time,  place  and  value,  that 
the  defendant  received  them  from  the  plaintiff  to  be  delivered  to 
him,  when  thereunto  afterward  requested.  But  if  the  suit  was 
founded  on  the  wrongful  taking  and  detention,  then  the  formula 
prescribed  was  that  the  defendant  had  wrongfully  taken  the  goods 
and  still  continued  to  detain  them  (in  case  these  had  not  been  re- 
plevied and  delivered  to  the  plaintiff).  When  the  writ  and  decla- 
ration was  for  the  wrongful  taking  and  detention,  the  formula  pre- 
scribed for  the  defendant  to  plead  was  that  known  as  "  non  cepit ;" 
but  when  the  wrongful  taking  was  the  gist  of  the  action,  the  for- 
mula was  "  non  detinetP  By  the  first  he  put  at  issue  not  only  the 
taking  of  the  goods  but  the  taking  them  in  the  place  alleged,  when 
it  was  material ;  and  by  the  second,  he  put  at  issue  not  only  the 
detention  but  also  the  plaintiff's  property  in  them. 

These  changes  were  simple,  yet  they  were  made  in  accordance 
with  the  law  of  actions,  conceding  the  necessity  as  well  as  the  rea- 
son of  the  method  of  Special  Pleading  by  means  of  formulae  in  con- 
nection with  the  trial  by  jury,  while  in  Covenant,  Debt,  Assumpsit, 
Trespass,  Trover  and  Case,  all  the  well  known  and  veteran  formu- 
lae in  use,  and  their  scope  and  meaning,  were  left  totally  undisturbed. 

But,  unfortunately,  there  had  obtained  this   relaxation  of  the 


THE   CODE    OF   PROCEDURE.  41 

scheme.  Although  the  parties,  if  they  chose,  might  in  all  these  ac- 
tions continue  the  use  of  the  appropriate  formula?  in  each,  until  the 
single  point  to  be  referred  for  decision  was  developed  as  the  result 
of  their  mutual  allegations,  they  yet  were  no  longer  compelled  to  use 
them.  No  matter  how  this  relaxation  of  the  rigor  of  its  rules  had 
crept  in  and  subverted  the  usefulness  and  genius  of  the  theory,  yet 
at  the  time  of  our  Revised  Statutes,  both  in  our  own  State  and  in 
England,  the  litigants  were  no  longer  compelled  to  use  them. 

Mollified  or  relaxed  in  this  way,  the  lawyer  could,  if  he  chose, 
state  his  client's  supposed  case,  without  in  the  first  instance  stop- 
ping to  inquire  particularly  into  the  facts,  in  half  a  dozen  or  more 
different  modes,  more  or  less,  each  of  these  being  called  a  count, 
and  each  purporting  to  be  a  distinct  cause  of  action  —  though,  in 
fact,  he  had  but  one  —  doing  this  to  meet  what,  afterward,  it  might 
appear  to  be,  on  the  trial,  by  varying  it  in  statement,  description  or 
circumstances,  to  avoid,  in  the  first  instance,  the  trouble  or  neces- 
sity of  any  thorough  and  decisive  examination.  The  lawyer,  in  the 
defendant's  behalf,  could,  for  the  same  reasons,  plead  the  general 
traverse  or  issue,  so  called,  the  formula  originally  prescribed  to  de- 
ny, or  put  at  issue  some  one  main  fact  alleged  by  the  plaintiff,  as 
"  non  est  factum,"  in  covenant,  or  "  non-assumpsit,"  in  assumpsit. 
In  each  action  this  formula  was  intended,  as  at  first  it  did,  to  deny 
the  truth  of  that  particular  fact,  all  the  others  stated  being  deemed 
as  conceded.  It  required,  to  put  at  issue  any  other  particular  and 
material  fact  the  plaintiff  had  alleged,  a  special  traverse  for  that 
purpose. 

Next  it  came  to  pass  that  this  general  formula  was  treated  as  a 
denial  in  general  of  the  truth  of  all  of  the  facts  stated  in  the  plain- 
tiff's declaration  and  material  to  his  case.  But  what  was  still  worse, 
he  could  not  only  plead  it  with  such  general  effect,  compelling  the 
plaintiff  to  prove  the  particulars  of  his  whole  case  (no  matter  how 
apparent  the  truth  of  the  facts  he  had  alleged  might  be),  but  under 
and  in  consequence  of  it,  he  was  allowed  to  prove  on  the  trial,  with- 
out otherwise  apprising  the  adverse  party  of  the  grounds  of  his  de- 
fence, facts,  which,  although  they  conceded  the  right  of  action  ori- 
ginally indisputable,  might  avoid  the  legal  effect  of  it,  because  these 
facts  showed  that  at  the  commencement  of  the  suit  he  had  no  such 
right  then  actually  existing,  as  a  performance,  a  release,  etc.,  —  in 
short,  whatever  facts  ought,  according  to  the  primitive  theory  of 


42  THE   CODE   OF  PEOCEDUKE. 

the  logical  scheme,  to  have  been  resolved  and  publicly  expressed  in 
the  shape  of  these  special  formulae. 

These  innovations  had  brought  with  them  all  the  evils  of 
general  pleading,  or  rather  of  having  none  whatever,  which  de- 
veloped the  essential  point  and  limited  the  subsequent  proceed- 
ings to  the  trial  or  adjudication  of  it.  Of  this  practice  Lord  Holt 
observed  that  these  abuses  had  crept  in  improperly,  but  that  it  was 
then,  perhaps,  too  settled  to  be  altered. — 12  Mod.,  377  ;  Ld.  Raym., 
566.  These  abuses  had  prevailed  by  usage  in  England,  and,  by  de- 
grees, were  so  well  settled  there,  and  in  this  State,  at  the  time  of 
the  Revised  Statutes,  that  the  Revisers  did  not  attempt  to  uproot 
or  eradicate  them.  Instead,  they  expressly  allowed  of  several 
counts  and  several  pleas  in  bar,  although  there  might  be  no  dis- 
tinct subject  matter  for  each,  as  a  matter  of  right ;  and  also  of  sev- 
eral replications  to  a  plea  by  leave  of  the  court  granted  for  special 
reasons  on  application.  In  effect,  however,  these  licenses  debauch- 
ed the  pluck  and  spirit  of  the  system,  and  substantially  wasted  or 
waived  the  chief  of  its  advantages.  The  pleadings,  notwithstand- 
ing the  distribution  of  the  subjects  of  litigation  into  actions,  and 
the  retention  of  the  formulae,  became  indefinite  and  vague,  deter- 
mining no  distinct  point,  when  ended,  so  that  every  cause  was  bur- 
dened on  the  start  with  the  whole  crude  mass  of  undisputed  and 
immaterial  matter,  which  every  controversy,  more  or  less,  involves 
—  the  essential  question  being  still  to  be  ascertained,  at  some  stage, 
afterward,  and  letting  loose  the  tremendous  rabble  of  confusion,  in- 
consistencies, delays,  expenses,  exceptions,  cases  and  motions  for 
new  trials  and  appeals,  always  inevitably  attending  on  such  a  method 
of  entering  at  large  upon  a  trial,  and  the  consequent  disposition  of 
a  law  suit  —  a  scene  of  strife  and  struggle  almost  endless. 

BEFOBM  IN  ENGLAND. 

The  hideous  evils  naturally  and  irresistibly  brought  into  being  by 
these  abuses,  had  in  England,  in  1828,  become  intolerable.  Had 
our  Revisers,  half  conscious  as  they  were  of  them  and  the  cause, 
abated  it  and  bravely  restored  this  system  of  Special  Pleading  to 
its  pristine  and  theoretical  perfection,  they  would  have  anticipated 
but  by  five  years,  four  months  and  four  days,  such  an  act  of  the 
British  Parliament ;  because  the  Third  Part  of  the  Revised  Statutes 


THE   CODE   OF  PROCEDURE.  43 

was  passed  December  10th,  1828,  and  the  act  of  3  and  4  William 
IV.,  c.  4,  August  14,  1833  :  "  For  the  further  amendment  of  the 
Law  and  the  better  advancement  of  justice." 

This  act,  after  reciting :  "  That  it  would  greatly  contribute  to 
"  the  diminishing  of  expenses  in  suits  in  the  Superior  Courts  of 
"  common  law  at  Westminster,  if  the  pleadings  were  in  some  re- 
"  spects  altered,  and  the  questions  for  the  trial  by  the  jury  left  less 
"  at  large  than  they  now  are,  according  to  the  course  and  practice 
"  of  pleading  in  the  several  forms  of  action,  but  this  cannot  be  con- 
"  veniently  done  otherwise  than  by  rules  of  the  judges  of  the  said 
"  courts,  from  time  to  time,  to  be  made,  and  doubts  may  arise  as 
"  to  the  power  of  the  said  judges  to  make  such  alterations  without 
"  the  authority  of  Parliament,"  enacted  and  conferred  upon  the 
judges  the  power  by  any  rule  or  order  to  be,  from  time  to  time,  by 
them  made  in  term  or  vacation,  at  any  time  within  four  years  from 
the  act,  to  make  such  alterations  in  the  mode  of  pleadings  as  to 
them  might  seem  expedient.  By  virtue  of  this  act,  it  was  that  the 
judges  did  among  other  great  and  wholesome  reforms  effect  the 
greatest  and  the  wisest,  by  simply  restoring  back  to  its  original 
simplicity  and  perfection  the  scheme  of  Special  Pleading  in  all  its 
vigor.     (See  reg.  gen.  Mil.  T.,  4  Wm.  IV.) 

The  very  first  step  they  provide  that  several  counts  or  several 
pleas  shall  not  be  allowed,  unless  a  distinct  subject  was  intended  to 
be  established  in  respect  of  each  count  or  plea ;  forbidding  more 
than  one  founded  on  the  same  principal  matter,  though  varied  in 
statement,  description  or  circumstances.  They  disposed  of  the 
abuse  of  the  use  of  the  general  issue  as  follows : 

"  Assumpsit.  In  all  actions  of  Assumpsit,  except  on  bills  of  ex- 
change and  promissory  notes,  the  plea  of  non-assumpsit  shall  oper- 
ate only  as  a  denial  in  fact  of  the  express  contract  or  promise  al- 
leged, or  of  matters  of  fact  from  which  the  contract  or  promise 
alleged  may  be  implied  by  law. 

"  In  all  actions  upon  bills  of  exchange  and  promissory  notes,  the 
plea  of  non-assumpsit  shall  be  inadmissible.  In  such  actions,  there- 
fore, a  plea  in  denial  must  traverse  some  matter  of  fact,  e.  g.>  the 
drawing  or  making,  or  endorsing  or  presenting  a  notice  of  dishonor 
of  the  bill  or  note.  f  . 

"  In  every  species  of  assumpsit,  all  matters  in  confession  and 
avoidance,  including  not  only  those  by  way  of  discharge,  but  those 
which  shall  show  the  transaction  to  be  void,  or  voidable  in  point 
of  law,  on  the  ground  of  fraud  or  otherwise,  shall  be  pleaded,  e.  g. 


4:4:  THE    CODE    OF   PROCEDURE. 

infancy,  coverture,  release,  payment,  performance,  illegality  of  con- 
sideration, either  by  statute  or  common  law,  drawing,  endorsing, 
accepting,  etc.,  bills  of  exchange  or  notes  by  way  of  accommodation, 
set  off,  mutual  credit,  unseaworthiness,  misrepresentation,  con- 
cealment, deviation,  and  various  other  defences  must  be  pleaded." 

"  Covenant  and  Debt.  In  debt,  on  speciality,  or  covenant,  the  plea 
of  non  est  factum  shall  operate  as  a  denial  of  the  execution  of  the 
deed  in  point  of  fact  only,  and  all  other  defences  shall  be  specially 
pleaded,  including  matters  which  make  the  deed  absolutely  void  as 
well  as  those  which  make  it  voidable." 

"  2.  The  plea  of  nil  debet  shall  not  be  allowed  in  any  action." 

"3.  In  actions  of  debt  on  simple  contract,  other  than  on  bills  of 
exchange  or  promissory  notes,  the  defendant  may  plead,  '  That  he 
never  was  indebted  in  manner  and  form  as  in  the  declaration  al- 
leged ; '  and  such  plea  shall  have  the  same  operation  as  the  plea  of 
non  assumpsit  in  indebitatis  assumpsit,  and  all  matters  in  confession 
and  avoidance,  shall  be  pleaded  specially  as  above  directed  in  actions 
of  assumpsit." 

"  4.  In  other  actions  of  debt  in  which  the  plea  of  nil  debet  has 
been  allowed,  including  those  on  bills  of  exchange  and  promissory 
notes,  the  defendant  shall  deny  specifically  some  particular  matter 
of  fact  alleged  in  the  declaration,  or  plead  specially  in  confession  or 
avoidance." 

"  Detinue.  The  plea  of  non  detinet  shall  operate  as  a  denial  of  the 
detention  of  the  goods  by  the  defendant,  but  not  of  the  plaintiff's 
property  therein,  and  no  other  defence  than  such  denial  shall  be 
admitted  under  that  plea." 

"  Case.  In  actions  on  the  Case,  the  plea  of  not  guilty  shall  operate 
only  as  a  denial  of  the  breach  of  duty  or  wrongful  act  alleged  to 
have  been  committed  by  the  defendant,  and  not  the  facts  stated  in 
the  inducement,  and  no  other  defence  than  such  denial  shall  be 
admissable  under  that  plea.  All  other  pleas  in  denial  shall  take  issue 
on  some  particular  matter  of  fact  alleged  in  the  declaration. — Ex.  gr. 

"  2.  All  matters  in  confession  and  avoidance  shall  be  pleaded  spe- 
cially, as  in  actions  of  Assumpsit." 

In  the  same  way,  and  on  the  same  principle,  these  Judges  limited 
the  effect  of  the  plea  of  not  guilty  in  the  action  of  trespass.  They 
did  it  in  obedience  to  the  act  of  Parliament,  and  to  carry  out  into 
the  business  of  litigation  the  policy  there  declared.  They  them- 
selves declare  it :  "  Because  (say  they)  by  the  mode  of  pleading 
"  hereinafter  prescribed,  the  several  facts  material  to  the  merits  of 
"  the  case  will,  before  the  trial,  be '  brought  to  the  notice  of  the  re- 
"  spective  parties  more  distinctly  than  heretofore,"  the  special  aim 
of  the  object  and  scope  of  special  pleading. 

Says  Mr.  Warren : 

"  All  these  statutes  and  rules,  fruits  of  five  years  elaborate,  ex- 


THE   CODE   OF  PROCEDURE.  45 

tensive  and  enlightened  investigation  by  the  Law  Commissioners, 
have  been  either  framed  or  anxiously  superintended  by  judges  of 
as  profound,  practical  learning  and  sagacity  as  England  ever  saw, 
and  have  already  exercised  a  most  sensible  and  benignant  influence 
upon  every  department  of  litigation,  with  reference  equally  to  suit- 
ors and  practitioners,  saving  to  the  one  the  destructive  expense  and 
procrastination  so  long  deplored  by  all,  and  to  the  other  simplifying 
and  abridging  the  drudgery  of  their  labors  —  rendering  the  practice 
of  their  profession,  in  a  word,  more  systematic  and  scientific  than 
ever."  ' 

Again  he  says : 

"  He  (the  lawyer)  can  no  longer  shelter  himself  beneath  the  sloven- 
ly and  unscientific  practice  of  shaping  his  case  in  a  dozen  different 
ways,  because  he  is  unable,  either  from  want  of  inclination,  time  or 
experience,  to  pitch  at  once  upon  the  proper  one,  and  stand  or  fall 
upon  it.  Vigilant  attention,  close  and  accurate  thought,  must  now 
be  invariably  exercised,  facts  must  be  weighed  and  sifted,  in  the  first 
instance,  and  their  real  bearing  ascertained  and  adjusted  to  the  legal 
formulae  with  prompt  decision.  A  client  will  henceforth  be  able  to 
see  in  the  twinkling  of  an  eye  whether  his  pleader  or  barrister  is  in- 
competent—  a  mere  pretender  —  and  he  must  act  accordingly." — 
Warren's  Law  Studies,  1835,  page  18. 

Says  Mr.  Spence : 

"  These  rules  have  completely  remodeled  the  whole  course  of  prac- 
tice and  assimilated  that  of  the  different  courts  ;  the  process  in  each 
court  had  been  made  uniform  by  one  of  the  statutes  above  referred 
to.  These  new  rules  have,  according  to  the  concurrent  testimony^  of 
all  who  are  competent  to  judge,  vastly  lessened  the  expense,  and  sim- 
plified and  accelerated  all  the  proceedings  in  an  action.  But,  though 
useless  and  inconvenient  forms  have  been  swept  away  and  some 
abuses  rectified,  the  system  remains  the  same,  as  on  its  original  con- 
struction. All  the  rules  of  any  importance  have  been  preserved  in 
their  full  vigor,  and  some  of  them  are  more  distinctly  developed  than 
formerly,  and  more  generally  and  consistently  applied.  Though  a 
summons  is  substituted  for  an  original  writ,  equal  strictness  is  ob- 
served to  compel  adhesiveness  to  forms  as  was  applied  to  the  for- 
mula? of  the  Romans,  and  the  original  writ  of  the  Anglo  Normans, 
and  as  has  already  been  partially  noticed,  the  rules  of  pleading  are 
as  rigidly  enforced  as  at  any  previous  period."— Spence,  Vol.  I,  253, 
1846.  See,  too,  Mr.  Sergeant  Stephens' u preface  to  his  third  edition 
of  his  work  on  Pleading. 

Says  Mr.  Chitty : 

"  The  principal  modern  alterations  attempted  in  pleading  have 
been  the  prohibition  of  more  than  one  count  upon  each  cause  of  ac- 
tion, and  the  exercising  more  care  in  preparing  that  single  count 


46  THE   CODE   OF   PROCEDURE. 

than  heretofore,  and  the  abolition,  or  rendering  less  frequent,  the 
use  of  a  plea  of  general  issue,  and  requiring  almost  every  ground  of 
defence  to  be  specially  pleaded.  The  great  increase  in  the  number 
of  pleas  has  rendered  it  necessary  to  prepare  an  entirely  new  Third 
vol.  of  Pleas  and  Replications  and  Subsequent  Pleadings,  most  of 
which  have  occurred  in  actual  practice,  and  been  decided  to  be  suf- 
ficient, and  all  have  been  carefully  examined  and  adapted  to  the  new 
rules  and  annotated."  See  Chitty's  preface  to  his  sixth  edition,  May 
12th,  1836. 

"By  far  the  most  important  modern  improvements  are  those 
introduced  by  the  Reg.  Gen.  Hil.  4,  Wm.  IV,  which  puts  an  end  to 
the  misapplication  and  abuse  of  the  general  issue,  and  compels  the 
defendant  in  terms  to  deny  the  particular  parts  of  the  declaration 
and  to  plead  specially  every  matter  of  defence  not  merely  consist- 
ing of  denial  of  the  allegations  in  the  declarations.  The  most  con- 
venient mode  will  be  to  print  the  rules  verbatim  in  the  context  and 
to  state  the  decision  in  notes."    See  Ghitty,  Sixth  Mig.  Edition,  513. 

In  1832,  while  the  commission  was  pending,  Lord  Tenterden  in 
Selby  v.  Bardons  (3  Barn,  and  Ad.  p.  16)  had  observed: 

"  I  consider  the  system  of  special  pleading,  which  prevails  in  the 
law  of  England,  to  be  founded  upon  and  to  be  adapted  to  the  pecu- 
liar mode  of  trial  established  in  this  country,  the  trial  by  the  jury  ; 
and  that  its  object  is  to  bring  the  case,  before  trial,  to  a  simple,  and, 
as  far  as  practicable,  a  single  question  of  fact,  whereby  not  only  the 
duties  of  the  jury  may  be  more  easily  and  conveniently  discharged, 
but  the  expense  to  be  incurred  by  the  suitors  may  be  rendered  as 
small  as  possible.  And  experience  has  abundantly  proved,  that  both 
these  objects  are  better  attained  when  the  issues  and  matters  of  fact 
to  be  tried  are  narrowed  and  brought  to  a  point  by  the  previous 
proceedings  and  pleadings  on  the  record,  than  when  the  matter  is 
left  at  large  to  be  established  by  proof,  either  by  the  plaintiff  in 
maintenance  of  his  action,  or  by  the  defendant  in  resisting  the  claim 
made  upon  him.  I  am  sensible  that  this  principle  has  not  always 
been  kept  in  view  by  the  courts,  and  that  there  have  been,  in  prac- 
tice, many  instances  of  departure  from  it,  founded  upon  very  nice 
and  subtle  distinctions." 

The  commission  issued  by  the  Crown  which  led  to  the  investiga- 
tion and  correction  of  these  abuses,  or,  as  Lord  Tenterden  terms  it, 
"  instances  of  departure  from  the  system  of  pleadings,"  bears  date 
in  1828,  the  year  in  which  the  Third  Part  of  our  Revised  Statutes 
was  passed.  Some  of  the  alterations  recommended  by  these  com- 
missioners related  to  other  parts  of  the  common  law  method  of 
proceeding  than  the  pleadings,  and  were  authorized  by  divers  acts 
of  Parliament.  Among  them,  the  distinction  which  formerly  existed 
in  the  jurisdiction  of  the  different  courts  is  abolished,  and  concur- 


THE    CODE   OF   PROCEDURE.  47 

rent  jurisdiction  in  all  personal  actions  is  given  to  the  Court  of  the 
Queen's  Bench,  the  Court  of  Common  Pleas  and  the  Court  of  Ex- 
chequer. The  use  of  original  Writs  in  personal  actions  is  super- 
ceded. But  with  regard  to  such  of  the  recommendations  of  the 
commissioners  as  related  to  Pleadings,  Parliament  delegated  it  to  the 
judges  to  make  such  alterations  in  these  subjects  as  they  thought 
fit  and  expedient ;  and  to  submit  them  when  made  to  both  Houses. 
The  Judges,  afterward,  as  we  have  seen,  promulgated  the  Regulaa 
Generales  of  Hilary  term,  1834,  by  which,  using  the  language  of 
Lord  Brougham,  "  the  great  and  prejudicial  alterations  of  the  last 
"  century  and  a  half  in  the  original  plan  which  governed  the  System 
"  of  Pleadings  were  corrected,  and  the  lessons  of  experience  applied 
u  to  this  correction  of  its  rules." 

What  is  meant  in  these  acts  of  Parliament  by  the  "  Superior 
"  Courts  of  Common  Law,"  whose  practice  and  pleadings  were  to 
be  corrected,  are  the  Queen's  Bench,  Common  Pleas  and  Exchequer. 

Each  of  these  has  its  five  judges.  These  fifteen  in  England  are 
popularly  called,  by  way  of  distinction  or  pre-eminence,  "  The 
"  Judges."  They  are  styled  the  Courts  of  Common  Law,  because 
they  are  the  ordinary  courts  in  which  the  great  mass  of  litigation 
is  done,  and  justice  is  administered  in  them,  the  common  law  way, 
on  the  principle  of  compensatory  retribution  by  a  judgment  and 
execution  for  damages,  in  which  the  subjects  of  litigation  were 
originally  classified  by  means  of  original  writs,  and  distributed  in 
their  respective  actions,  the  injury  for  which  relief  is  sought  giving 
its  name  to  each,  and  each  having  its  own  established  and  appro- 
priate formula,  expressing,  classifying,  expediting  the  reasoning  or 
mutual  allegations  of  the  parties,  until  the  point  to  be  referred  for 
decision  is  developed,  as  the  result  of  the  pleading  itself:  "  The 
"  original  plan  which,"  as  Lord  Brougham  expresses  it,  "  governed 
"  the  system  of  pleading." 

It  is  in  contrast  with  these  courts  that  the  Court  of  Equity,  than 
which  they  are  supposed  to  be  much  more  ancient,  is  designated  as 
Extraordinary,  for  the  reason  that,  in  cases  which  justify  its  inter- 
position, it  proceeds  in  administering  justice  on  the  preventive  or 
dispensatory  principle,  extra  ordinem  —  a  method  unknown  in  the 
ordinary  courts,  not  in  opposition  to  them,  but  auxiliary  or  supple- 
torv  —  to  do  what  in  special  instances  ought  to  be  done,  but  which 
they  cannot  do  by  their  mode  of  proceeding.     Of  course,  the  vast 


48  THE   CODE   OF   PROCEDURE. 

proportion  of  litigation  in  England,  as  in  every  civilized  community, 
belongs  to  the  ordinary  kind  —  where  damages  are  given  for  con- 
tracts already  broken,  or  torts  already  done  —  and  is  disposed  of  in 
these  Superior  Courts  of  Common  Law,  where  the  injuries  are 
redressed  on  this  principle.  They  are  now  courts  of  general  and  con- 
current jurisdiction  in  all  the  personal  actions  between  subject  and 
subject, —  the  Common  Pleas  alone  having  cognizance  of  the  few 
surviving  species  of  real  actions.  These  fifteen  judges  hear  and 
determine  all  questions  of  law,  developed  in  the  course  of  the  pro- 
ceeding by  demurrer  in  their  respective  courts  ;  try  all  the  issues 
of  fact  ascertained,  in  like  manner,  before  the  jury ;  and,  in  addition, 
sit  in  the  Court  of  Exchequer  as  appellate  judges. 

This  Court  has  no  original  jurisdiction.  It  is  a  Court  of  Appeals 
to  correct  the  errors  of  these  three  other  courts.  By  the  acts  of 
II.  George  IV.,  and  I.  Wm.  IV.,  c.  70,  §  8,  the  judgments  of  each  of 
these  Superior  Courts,  in  all  suits  whatever,  are  subject  to  revision 
by  the  judges  of  the  other  two,  sitting  collectively  as  a  Court  of 
Error  for  that  purpose  in  the  Exchequer  Chamber.  The  organiza- 
tion of  this  Court,  consequently,  admits  of  three  different  combi- 
nations, consisting  of  any  two  of  the  courts  below,  to  wit :  those  who 
are  not  parties  to  the  judgment  supposed  to  be  erroneous.  From 
the  decision  of  each  of  these  Superior  Courts  of  law,  there  lies  a 
Writ  of  Error]  into  the  Exchequer  Chamber,  so  that,  as  members 
of  this  appellate  court,  these  fifteen  judges  hear  and  determine  all 
questions  brought  in  this  manner  into  that  court  for  review  from 
either  of  the  three.  It  is  in  these  courts,  the  ordinary  as  distin- 
guished from  the  extraordinary  one,  the  Court  of  Equity,  that  this 
system  of  Special  Pleading  prevails  and  was  always  used.  In  its 
own  department  of  human  labor  it  has  been  as  useful  as  the  plow 
or  the  loom  in  theirs.  Let  him  who  pleases  forego  the  benefit  of 
either,  because  we  cannot  trace  it  to  its  crude  beginnings  in  the 
experience  and  necessity  of  mankind.  The  Egyptian  never  was 
foolish  enough  to  refuse  to  drink,  or  fertilize  his  lands,  with  the 
waters  of  the  Nile,  because  he  could  not  penetrate  to  their  sources. 
He  worshipped  it  the  rather. 

Without  stopping  to  discuss  the  origin  of  it,  all,  everywhere,  con- 
cede that  in  these  Superior  Courts  of  Common  Law,  the  original 
plan  of  Special  Pleading,  as  Lord  Brougham  designates  it,  always 
prevailed,  and  that  it  existed  in  its  rigor  and  perfection  in  the  reign 


THE   CODE    OF   PROCEDURE.  49 

of  Edward  III.  He  also  says  that  within  a  century  and  a  half,  the 
perverse  alterations  in  the  practice  of  it  had  perverted  its  design 
and  the  ends  of  justice  ;  "  so  that  the  records  in  the  great  majority 
"  of  cases  instead  of  exhibiting  a  plain  view  of  what  each  party  is 
"  prepared  to  prove,  contains  a  multitude  of  words  from  which,  if 
"  the  real  matter  in  dispute  can  be  gathered  at  all,  it  is  only  by 
u  guess  work,  or  by  communications  out  of  the  record  relating  to 
"  things  of  which  it  gives  not  even  a  hint." 

The  spirit  and  vigor  of  this  plan  having  been  by  degrees  relaxed, 
were  lost  as  well  as  the  chief  of  its  advantages,  although  the  preserva- 
tion of  the  distinction  and  forms  of  the  several  actions  was,  of  itself, 
of  an  incalculable  utility.  The  use  of  different  counts  when  in  fact 
there  was  but  one  cause  of  action,  for  the  purpose  of  indulging  the 
lawyer,  that  he  might  be  able,  if  he  fails  in  the  proof  of  one  to  suc- 
ceed in  another,  was  soon  followed  by  the  statute  of  4  Anne,  c.  16, 
authorizing,  also,  the  indulgence  of  several  pleas  by  leave  of  the 
court.  In  course  of  time  the  necessity  of  getting  such  leave  was 
waived,  or  yielded,  by  the  judges,  to  the  clamors  of  the  lawyers.  It 
led  at  once,  as  in  the  case  of  the  various  counts,  to  the  abuse  of 
allowing  the  defendant  to  plead  several  pleas,  when  in  fact  he  only 
had  one  ground  of  defence,  for  the  same  purpose  of  shaping  a  single 
one,  in  various  modes,  so  that  on  a  failure  to  prove  one  plea,  he 
might  have  a  chance  of  proving  another.  These  were  pernicious. 
The  fees  being  taxed  in  proportion  to  the  number  of  counts,  or 
pleas,  and  at  so  much  a  folio,  precipitated  the  profession  into  that 
infinite  prolixity  and  endless  multitude  of  words,  which  the  system 
in  its  original  design  or  rigor  totally  prevents,  or  renders  impossi- 
ble. It  was  these  abuses,  and  that  of  perverting  the  use  of  the 
general  issue,  which  led  the  way  not  only  to  such  inexhaustible  ver- 
biage, but  of  course  to  such  a  fruitful  multiplicity  of  questions  on 
every  trial,  bills  of  exceptions  and  motions  for  new  trials,  that  a 
verdict  became  of  little  value  if  not  worthless.  The  courts  became 
obstructed  and  clogged  by  these  accumulations,  till  the  pressure 
was  intolerable  and  attracted  the  attention  of  statesmen. 

The  result  was  the  appointment  of  this  Law  Commission,  in  1828, 
to  investigate  the  cause  of  those  evils  in  the  Common  Law  Courts. 
Whatever  of  learning  or  experience  there  was  in  England  touching 
the  subject,  was  summoned  to  the  help  of  those  gentlemen,  by  the 
fiat  of  the  British  Parliament,  for  the  elucidation  of  this  insatiable 


50  THE   CODE   OF   PROCEDURE. 

branch  of  human  labor.  It  is  out  of  place  in  this  exposition  to  at- 
tempt to  particularize  the  details  of  this  magnificent  task.  Their 
reports  speak  for  themselves.  Their  labors  confront  the  world.  It 
is  the  result  —  the  authority  of  it  —  that  we  have  to  do  with,  on 
this  occasion.  The  evils  obstructing  or  vitiating  the  administration 
of  justice  in  these  three  Superior  Courts  of  Common  Law,  were  de- 
tected, exposed,  and  dragged  into  light.  They  traced  the  cause  of 
them  to  these  abuses  or  perversions  of  the  fundamental  rules  ori- 
ginally governing  the  system  of  Special  Pleading,  which  had  "  with- 
"  in  a  century  and  a  half  almost  imperceptibly  crept  into  use,"  and 
undermined  or  corrupted  a  system  so  indissolubly  connected  with 
the  advantages  of  this  mode  of  procedure ;  and  led,  as  we  have  seen, 
after  five  years  of  the  most  illustrious  care,  labor  and  diligence, 
to  its  restoration,  in  all  its  rigor,  to  its  pristine  perfection. 

Notwithstanding  this  example,  and  the  conclusiveness  of  it,  on 
the  necessity  and  advantages  of  Special  Pleading  in  actions  at  law, 
we  thought  it  best,  before  calling  attention  to  it,  to  suggest  and  ex- 
pound as  we  have  done,  that  we  might  explore  the  way,  cer- 
tain observations  on  the  subject,  that  the  nature,  usefulness,  expe- 
diency and  indispensableness  of  Special  Pleading  might,  a  priori, 
appear.  It  is  obviously  suitable,  if  it  could  be  done,  in  at- 
tempting to  elucidate  the  subject,  to  bring  into  view  the  rationale, 
or  logical  ideas,  on  which  the  use  of  the  series  of  formulas  is  found- 
ed, no  less  than  the  brevity,  the  certainty,  the  clearness,  the  ra- 
pidity and  the  economy  it  is  calculated  to  secure  or  compel  in  the 
great  business  of  litigation.  The  system  has  too  much,  and  too 
long,  ignorantly  been  treated  with  derision  by  lawyers.  It  has 
been  used  by  them  as  a  term  expressing  reproach  or  contempt ;  for 
characterizing,  in  that  way,  what  is  excessively,  needlessly  or  dan- 
gerously, subtle,  or  precise,  or  intricate.  Now  it  is  plain  that  this 
method  never  was,  and  never  will  be,  in  repute  or  credit  among 
the  lawyers ;  although,  beyond  any  question,  it  would  be  with  their 
clients,  if  they  comprehended  its  security  or  economy  to  themselves. 


THE  BAB  OPPOSED  TO  SPECIAL  PLEADING. 

The  relaxation  of  its  rules  and  the  abuses  we  have  specified  —  of 
a  multiplicity  of  counts  and  pleas  —  together  with  the  perversion  of 
the  use  of  the  general  issue  till  it  was  worse  than  worthless,  had 


THE   CODE    OF   PROCEDURE.  51 

their  motive,  rise  and  propagation  in  the  slovenly  and  unscientific 
inclinations  and  habits  of  the  lawyers.  It  is  human  nature.  The 
poor  ones  never  wish  to  enter  upon  a  controversy,  except  at  large 
or  at  random,  in  the  first  instance.  They  choose  to  drift  away  upon 
its  surges,  or  its  chances.  They  have  an  aversion  to  being  obliged 
at  first  thoroughly  to  examine  the  controversy,  that  they  may  gauge 
and  measure  it ;  to  scrutinize,  resolve  and  state  its  facts,  or  its  law, 
on  paper,  by  the  test  of  these  inexorable  rules  of  logic,  shaped  into 
these  judicial  formulae,  that  the  simple  points  on  which  its  merits, 
or  its  logical  fate  turns,  may  be  ascertained  and  publicly  adjusted 
on  the  record,  by  which  the  litigants  must  stand  or  fall,  and  take 
the  responsibility  of  standing  or  falling.  This  requires,  at  the  first, 
vigilant  attention,  close  and  accurate  thought.  The  facts  have  to 
be  ascertained,  weighed  and  sifted  —  their  real  bearing  appreciated 
and  adjusted  into  the  precision  and  brevity  of  the  logical  formula? 
with  prompt  decision.  Of  course,  these  men  choose  to  enter  into 
the  controversy  at  large,  and  drift  down  the  stream  of  vagueness 
and  prolixity  to  the  trial,  where  all  anterior  responsibility  to  the 
public,  or  to  their  clients,  is  lost  amid  a  throng  of  witnesses,  a  huge, 
unwieldy  mass  of  testimony,  the  shifting  tortuosities  of  the  charge, 
a  bustling  rabble  of  points  and  exceptions ;  or  still  afterward,  on 
testing  these,  over  and  over  again,  on  motions  for  new  trials,  on 
Appeals  or  Writs  of  Error,  in  the  Appellate  Court. 

Nor  does  the  good  lawyer  care,  at  the  start,  to  undertake  such  a 
vigilant  and  prophetic  labor.  It  may  be  that  even  his  client  does 
not,  or  that  he  fears  to  have  it  done,  lest  the  event  should  cool  his 
passions  or  demonstrate  what  might  make  him  uncomfortable  to 
know  at  once,  that  the  law  or  the  facts  are  fatal  to  his  case.  Be- 
sides, this  class  of  lawyers  find  themselves  pinched  for  time,  and 
have  no  opportunities  now,  as  they  think,  for  inquiries  into  or  con- 
siderations of  the  facts,  or  the  law  applicable  to  or  affecting  them, 
or  to  prepare  and  settle,  beforehand,  the  special  pleadings.  Each 
of  this  class  of  lawyers  is  well  aware  that  this  special  reasoning,  or 
pleading,  has  to  be  done  somewhere  in  the  progress  of  the  case, 
but  without  stopping  to  search  into  all  its  circumstances,  in  order 
to  do  it  now,  shape  and  express  its  steps  in  those  formulae,  it 
suits  much  better  his  ease  or  accountability  to  procrastinate  the 
hour  of  undertaking  the  task,  and  defer  it  to  the  trial ;  and  then  do 
it,  on  his  feet,  in  open  court,  by  mutual  altercations  between  the 
4 


52  THE   CODE   OF   PEOCEDUKE. 

judge,  the  adverse  lawyer  and  himself.  If  not  then  done  satisfac- 
torily to  himself,  he  does  it  afterward  by  means  of  a  Case  and  Bill 
of  Exceptions  on  appeal.  Yea,  it  suits,  too,  much  better  his  inter- 
est, for  no  fees  likely  to  be  proper,  or  allowed,  for  such  a  prelimi- 
nary and  scientific  investigation,  preparing  and  settling  the  single, 
real  and  essential  question  in  his  office,  by  its  consummate  resolu- 
tion, or  the  logical  clarification  of  the  controversy,  through  the  me- 
dium of  these  formulae,  can  compare,  even  in  amount  with  those 
charges,  proper  and  reasonable  for  attending  courts  and  long.trials, 
or  preparing  and  settling  voluminous  Cases  and  Bills  of  Exceptions 
for  appeals,  the  series  of  term  fees,  and,  some  time  or  other,  appear- 
ing at  court,  in  banc,  and  there  arguing  them.  Yet  it  may  in  the 
end  become  remedilessly  manifest,  that  had  a  little  of  this  costly  la- 
bor been  expended  in  testing  the  case  at  the  beginning,  it  would 
then  have  been  found  that  there  was  not  in  it  a  point  of  law,  or 
fact,  fit  to  be  litigated  at  all.  It  is  the  lawyers,  therefore,  who  wit- 
tingly or  unwittingly,  have  originated  this  prejudice  or  contumely. 
They  will  perpetuate  the  scandal,  because,  forever,  both  their  incli- 
nations, their  convenience  and  their  interest  make  them,  perhaps  un- 
consciously, averse  to  the  plan  of  Special  Pleading.  Nor  will  they 
ever  resort  to  it  of  their  own  mind.  Nor,  indeed,  can  one  do  it,  if 
it  is  not  made  compulsory  on  all.  It  must  be  compelled  by  the 
statesman. 

THE  REVISION. 

The  Revisers  of  1828  adopted  and  continued  this  common  law 
method  of  proceeding,  letting  it  stand  with  the  relaxation  of  its 
fundamental  rules,  or  the  abuses  with  which  it  was  then  afflicted  in 
England,  and,  generally,  in  our  own  country.  The  usage  of  the 
original  writs  was  abolished,  but  the  classification  of  actions  these 
had  originated,  and  the  distribution  of  the  subjects  of  litigation  into 
these,  were  sedulously  preserved.  In  pleading,  several  counts  to 
the  plaintiff  and  several  pleas  to  the  defendant  were  allowed,  even 
though  there  might  be  but  one  distinct  matter  of  complaint  or  de- 
fence —  each  being  varied  merely  in  statement,  description  or  cir- 
cumstances. Instead  of  being  restricted  to  the  special  formulae,  the 
general  traverse,  or  issue,  was  continued  to  be  treated  as  denying 
every  allegation  or  averment  of  fact  in  the  declaration.  The  effect 
of  this,  as  we  have   seen,  compelled  the  plaintiff  to  prove,  and  to 


THE   CODE   OF   PEOCEDUEE.  53 

come  to  trial  prepared  to  prove,  every  matter  whatever,  material 
to  his  case  —  notwithstanding  the  defendant  knew  these,  or  some 
of  them,  to  be  true  —  not  relying  at  all  on  their  being  false,  or  on 
his  own  ability  to  disprove  them,  but  merely  experimenting  on 
some  supposed  incapacity  or  difficulty  of  his  adversary  of  procuring 
his  testimony.  So,  too,  this  abuse  of  the  general  issue  enabled  the 
defendant  to  put  in  evidence  any  description  of  defence,  which,  con- 
ceding the  plaintiff's  case,  could  avoid  its  legal  effect.  For  instance, 
in  Assumpsit,  that  the  promise  was  void,  or  voidable,  or  that  he 
had  performed  it,  or,  been  released  or  discharged  from  it,  or,  even 
infancy,  or  coverture  —  nothing  appearing  on  the  record  to  apprise 
the  plaintiff,  or  the  court,  or  the  jury,  what  the  real  point  to  be 
tried  was. 

The  Revisers  permitted,  unfortunately,  these  abuses  to  stand  as 
they  then  stood  in  England.  They  united  Detinue  and  Replevin 
into  one  action,  and  prescribed  the  formulas  appropriate  for  conduct- 
ing it.  They  remodeled  the  action  of  Ejectment,  treating  it  as  a 
real  action,  and  prescribed  the  formulae  suitable  to  the  alterations. 
Beyond  those  changes,  which  were  those  of  convenience  rather  than 
of  principle,  the  Revisers  were  carefully  scrupulous  to  preserve  the 
distinction  of  the  several  actions,  and,  as  it  is  plain,  exacted  and  en- 
forced it  rigorously.  It  is  the  fundamental  instrumentality  in  the 
scheme.  It  remained  here  as  it  then  did  in  England,  the  last  bar- 
rier to  remediless  uncertainty,  confusion  and  helplessness  in  the 
business  of  litigation. 

The  very  same  evils,  from  the  very  same  causes,  in  England,  led 
(as  we  have  seen)  to  the  parliamentary  Law  Commission,  its  inves- 
tigations, reports,  and  the  remedy  ;  namely,  the  restoration  of  the 
system  of  Special  Pleading  by  formulas  in  the  actions  at  law.  In 
the  relaxation  of  the  strictness  of  its  rules  was  found  an  adequate 
cause,  and  the  solution  of  all  their  troubles.  The  use  of  the  general 
issue,  as  a  summary  denial  of  the  plaintiff's  case,  without  giving 
him  the  least  notice  on  what  special  defence  the  defendant  meant  to 
rely,  took  the  lead  in  the  whole  troop  of  the  difficulties  —  particu- 
larly, because  the  effect  of  it  was  to  send  and  defer  the  whole  case, 
on  both  sides,  to  the  trial,  without  as  yet  any  separation  of  the  law 
from  the  facts,  or  without  having  as  yet  ascertained  and  adjusted 
in  the  record  the  exact  question  or  questions  of  fact  to  be  tried. 
For  aught  of  anything  in  the  record,  the  parties  might  be  taken  by 


54  THE    CODE   OF   PROCEDURE. 

surprise,  and  find  themselves,  the  one  or  the  other,  confronted  by- 
some  unexpected  matter  of  defence,  or  reply,  which,  from  want  of 
timely  notice,  neither  would  be  in  a  condition  to  meet  —  nothing 
being  admitted  in  the  pleadings,  so  called.  Each  party  was,  of 
course,  obliged  to  prepare,  provisionally  as  far  as  he  might,  testi- 
mony on  all  the  different  particulars,  which  the  nature  of  the  action, 
by  any  possibility,  could  make  it  incumbent  on  him  to  establish, 
though  many  of  these  might  be  such  that  his  adversary,  if  compel- 
led to  plead  specially,  would,  of  course,  never  have  disputed.  The 
accumulation  of  witnesses,  or  of  evidence,  became  prodigious,  and, 
consequently,  the  expenditures  still  more  prodigious  and  destructive. 

As  often  as  any  way,  the  cause,  notwithstanding  all  this  labor 
and  expense,  would  turn  solely  on  a  point  of  law.  Instead  of  its 
having  been  developed  by  means  of  a  demurrer,  and  presented  in 
that  shape,  for  adjudication  by  a  full  bench,  the  essential  question 
having  been  in  this  manner  put  off  to  the  trial,  had  then  to  be 
adjusted  and  decided  by  the  single  judge,  who  had  on  that  occasion 
slight  chance  for  consideration,  let  alone  the  scuffle  of  the  rival 
lawyers  between  themselves,  and  with  him,  as  to  what  it  was. 
There  was  little  probability  that  the  parties,  or  their  lawyers, 
would  acquiesce  in  his  single  opinion.  The  alternative  was  the 
appellate  court  and  the  Bill  of  Exceptions  to  take  the  opinion  of  the 
judges  in  banc.  Now  this  is  an  expensive,  laborious,  unsatisfactory 
way,  and  as  perilous  as  either,  for  raising  and  trying  a  question  of 
law,  or  the  legal  effect  of  a  question  of  fact.  Were  this  not  so,  the 
trial  by  jury  is  not  only  useless  but  misplaced.  It  might  have  been 
spared  altogether,  had  the  parties  been  compelled,  at  first,  to 
plead  specially. 

The  necessity  of  recapitulating,  for  the  information  of  the  court 
above,  all  which  occurred  on  the  trial  before  the  single  judge,  is 
also  an  enormous  as  well  as  a  costly  disadvantage.  In  doing  this,  the 
parties  are  at  the  caprice  of  the  memory  or  the  minutes  of  the  judge, 
who  settles  the  exceptions  or  case ;  who  can  settle  it  to  suit  his 
passions,  his  prejudices,  his  indolence,  his  ease,  his  egotism,  or  his 
darling  pride  of  opinion.  No  doubt,  oppressed  with  such  embar- 
rassments, the  motion  often  fails  in  many  cases  when  it  ought  to 
succeed,  and  it  succeeds  in  many  when  it  ought  to  fail.  The  relief 
it  gives,  when  it  proves  successful,  is  that  of  a  new  and  expensive 
trial,  as  laborious  as  the  former,  if  the  question  be  one  of  fact.    If 


THE   CODE    OF   PROCEDURE.  55 

it  be  one  of  law,  the  question  is  less  distinctly  and  less  satisfactorily 
determined  on  a  motion  for  a  new  trial,  than  when  raised  by  special 
pleadings,  and  brought  before  the  whole  court,  in  the  very  first 
instance,  by  demurrer. 

The  value  of  the  verdict  is  seriously  impaired  ;  for,  after  it  has 
been  obtained,  its  stability  depends  on  the  questions  of  law 
suspended  over  it.  These  as  yet  have  got  to  be  determined. 
There  is,  almost  literally,  no  limit  to  the  points  of  law  and  fact, 
which,  by  this  mode  of  analyzing  a  controversy,  can  be  raised 
and  multiplied,  ingeniously  and  obviously  within  the  bounds  of  pro- 
priety or  necessity.  Of  course,  the  motions  for  new  trials  are 
correspondingly  and  enormously  accumulated.  Though  every 
hundredth  man  were  a  judge,  the  courts  must  be  constantly  over- 
whelmed and  crushed.  Such  a  plight  of  things  led,  in  England,  to 
this  restoration  of  the  system  of  Special  Pleading.  We  wallowed 
on  in  the  midst  of  these  infirmities  to  the  Constitution  of  1846. 
Under  the  24th  section  of  article  6th  of  that  Constitution,  in  con- 
nection with  section  8th,  chapter  59,  of  the  laws  of  1847,  our 
supposed  relief  ended  in  the  calamity  of  the  Code  of  Procedure. 

TEE  USURPATION  AND  IDEAS  OF  TEE  LEGISLATURE. 

It  may  be  that  we  have  satisfactorily  explained  what  was,  Oct. 
9th,  1846,  meant  by  "the  rules  and  practice,  pleadings,  forms  and 
"  proceedings  of  our  Courts  of  Record,"  which,  by  the  Constitution, 
it  was  to  become  the  duty  of  the  commissioners  to  "revise,  reform, 
"  simplify  and  abridge"  or  what  was  meant  by  "  the  present  forms 
"  of  actions  and  pleadings  in  cases  at  law"  to  abolish  which  it  was 
by  the  Legislature,  April  8,  1847,  made  also  their  duty;  or  what 
was  meant  by  the  two  methods  of  proceeding  in  Law  and  Equity, 
which  it  was  also  to  be  the  duty  of  these  commissioners  "  to  make 
"  uniform"  The  idea  of  abolishing  "  these  forms  of  actions  and 
"  pleadings  in  cases  at  law"  does  not  exist  in  the  language  of  the 
Constitution  ;  nor  does  the  idea  of  proceeding  "  by  a  uniform  course 
"  in  all  cases,  legal  and  equitable." 

Says  Mr.  Justice  Selden  : 

"  What  are  the  distinctions  between  actions  at  law  and  suits  in 
Equity  ?  The  most  marked  distinction  obviously  consists  in  their 
different  modes  of  relief.     In  the  one, with  a  few  isolated  exceptions, 


56  THE   CODE   OF   PROCEDURE. 

relief  is  universally  administered,  and  can  only  be  administered, 
in  the  form  of  pecuniary  compensation  in  damages  for  the  injury 
received  ;  in  the  other,  the  court  has  a  discretionary  power  to 
adapt  the  relief  to  the  circumstances  of  the  case.  By  what  pro- 
cess can  these  two  modes  of  relief  be  made  identical  ?  It  is  possible 
to  abolish  one  or  the  other,  or  both  ;  but  it  certainly  is  not  possible 
to  abolish  the  distinction  between  them.  The  Legislature  may, 
unless  prohibited  by  the  Constitution,  enact  that  no  court  shall 
hereafter  have  power  to  grant  any  relief  except  in  the  form  of 
damages  ;  and  thereby  abolish  all  suits  in  Equity  ;  or  that  all 
courts  shall  have  power  to  mould  the  relief  to  suit  the  particular 
case  and  thereby  virtually  abolish  actions  at  law,  as  a  distinct 
class.  To  illustrate  by  a  single  case  :  They  may  provide  that  when 
a  vendor  of  land,  who  has  contracted  to  sell  and  received  the 
purchase  money,  refuses  to  convey,  the  vendee  shall  have  no  rem- 
edy but  an  action  for  damages ;  or,  on  the  other  hand,  that  he  shall 
be  confined  to  a  suit  for  a  specific  performance,  but  it  is  clearly 
beyond  the  reach  of  their  powers  to  make  those  two  remedies  the 
same.  Another  leading  distinction  between  common  law  actions 
and  suits  in  Equity,  consists  in  the  different  modes  of  trial.  The 
former  are  to  be  tried  by  a  jury  ;  the  latter  by  the  court.  Can  the 
Legislature  abolish  this  distinction  ?  They  might,  but  for  the 
restraint  of  the  Constitution,  abolish  either  kind  of  trial,  or  reclass- 
ify the  classes  to  which  they  apply  ;  but  they  cannot  make  trial  by 
jury  and  trial  by  the  court  the  same  thing.  It  is  plain  that  the  only 
way  in  which  the  declaration  contained  in  §  69, —  that  l  there  shall 
be  in  this  State  hereafter  but  one  form  of  action  for  the  enforcement 
or  protection  of  private  rights  and  redress  of  private  wrongs,' — 
can  be  made  good  is  by  abolishing  both  the  form  of  the  trial  and  the 
mode  of  relief  in  one  or  the  other  of  the  two  classes  of  action. 
When  this  is  done,  and  not  till  then,  shall  we  have  a  homogeneous 
form  of  action  for  all  cases. 

"  Has  the  Legislature  the  power  to  do  this  ?  The  Constitution 
contains  the  following  provisions,  viz  :  '  There  shall  be  a  Supreme 
Court  having  general  jurisdiction  in  law  and  Equity.'  (Art.  6, 
§  3.)  '  The  Legislature  shall  have  the  same  power  to  alter  and 
regulate  the  jurisdiction  and  proceedings  in  law  and  Equity  as  they 
have  heretofore  possessed.'  (§  5.)  «  The  testimony  in  Equity 
cases  shall  be  taken  in  like  manner  as  in  cases  of  law.'  (§  10.) 
Will  it  be  contended,  in  the  face  of  these  provisions,  that  the  Legis- 
lature has  power  to  abolish  the  jurisdiction  of  the  courts,  either  at 
law  or  in  Equity  ?  The  Constitution  gives  the  Supreme  Court 
general  jurisdiction  both  in  law  and  Equity.  Can  this  be  taken 
away  ?  It  authorizes  the  Legislature  c  to  allow  and  regulate ' 
both  jurisdictions.  Does  this  mean  that  it  may  abrogate' them  f 
Nor  did  these  ideas  exist  in  the  Convention." 

Continues  the  Justice : 

"If   we    recur    to  the   proceedings    of  the    Convention    which 
framed    the   Constitution,  all   doubts  as  to  its  true   construction 


THE   CODE   OF    PROCEDURE.  57 

in  this  respect  will  be  removed.  The  Committee  on  the  Judiciary 
report  on  the  1st  day  of  August,  and  in  that  report,  §  3,  providing 
for  a  Supreme  Court,  reads  as  follows :  'There  shall  be  a  Supreme 
Court,  having  the  same  jurisdiction  in  law  and  equity  which  the 
Supreme  Court  and  Court  of  Chancery  now  have,  subject  to 
regulation  by  law.'  On  the  10th  of  August,  a  member' moved 
to  add  to  the  report  the  following:  'And  to  the  end  that  ulti- 
mately the  jurisdiction  of  law  and  equity  may  not  be  separately 
administered,  and  that  the  two  may  be  blended  into  one  harmoni- 
ous system,  the  Legislature  shall  provide  by  law,  as  far  as  may  be, 
a  common  form  of  procedure  for  remedies  arising  under  both  juris- 
dictions.' This  proposition  was  afterward  modified  so  as  to  read  : 
'  The  Legislature  shall  provide  by  Law  a  uniform  system  of  proced- 
ure in  the  administration  of  justice  in  civil  cases,  without  regard  to 
the  distinctions  heretofore  had  between  different  forms  of  action 
and  different  jurisdictions  in  law  and  equity.'  After  a  week's  debate 
upon  this  and  kindred  propositions,  calling  forth  most  of  the  emi- 
nent legal  talent  and  learning  in  the  Convention,  all  the  propositions 
looking  to  a  blending  of  the  modes  of  proceeding  in  the  two  juris- 
dictions were  rejected,  and  the  section  was  adopted  as  it  now  stands 
in  the  Constitution.  (Vide  Debates  in  Conv.,  Atlas  ed.  481  to  582.) 
Thus  it  will  be  seen  that  section  69  of  the  Code  is  an  attempt  to 
exercise  a  power  which  the  Convention,  in  framing  the  Constitution, 
expressly  refused  to  confer  upon  the  Legislature."  (13  N".  Y.  488, 
at  pages  493  to  496.) 

We  owe  the  Code  to  those  anomalous  notions  of  the  Legislature 
which  assumed  to  prescribe  a  duty  for  the  commissioners  wholly 
inconsistent  and  incompatible  with  the  duty  the  Constitution  itself 
had  prescribed  to  them.  These  propositions  of  Justice  Selden  are 
indisputable,  and  expose  the  usurpation  of  the  Legislature.  The 
framers  of  that  instrument  undertook  to  prescribe  and  limit  the 
task  and  the  object  of  the  task  they  instructed  these  commissioners 
to  perform,  namely :  "  To  revise,  reform,  simplify  and  abridge  the 
"  rules  of  practice,  pleadings,  forms  and  proceedings  of  the  courts  of 
"  records  of  this  State."  The  duty  prescribed  by  the  Legislature 
expresses  an  intention  "  to  abolish "  the  well  known  forms  of 
actions,  the  common  law  mode  of  procedure,  and  pleadings  at  law  ; 
while  that  duty,  the  Constitution  itself  specifies,  expresses  the  inten- 
tion of  preserving  these  well  known  and  wonderful  instrumentalities 
of  accelerating  the  business  of  litigation  as  they  appeared  in  our 
Revised  Statutes  and  in  our  courts  of  record  —  to  do  precisely  what, 
we  have  seen,  had  then  been  done  in  England  for  more  than  twelve 
years,  under  a  similar  enactment,  in  consequence  of  the  same  abuses 
of  the  system  there,  we  were  laboring  under  here  —  through  this 


58  THE   CODE   OF   PROCEDURE. 

long  and  pernicious  relaxation  of  its  logical  and  fundamental 
rules. 

"  To  abolish  the  forms  of  action  and  pleadings,"  meant,  of  course, 
to  abolish  this  common  law  method  of  procedure  we  have  detailed, 
in  cases  of  strict  law ;  or  when  damages  are  sought  for  contracts 
already  broken,  or  torts  already  committed. 

It  would  seem  that  the  Legislature  had  become  possessed  of  a 
notion  that  this  method  of  dealing  with  this  kind  of  litigation  was 
of  a  helpless  or  mischievous  tendency ;  or  that  it  had  no  origin  in 
reason,  experience  or  necessity  ;  that  its  plan  of  distributing  injuries 
of  that  kind  into  the  several  species,  of  which  these  are  ultimately 
and  logically  susceptible,  was  a  foolish  and  worthless  scheme  ;  that 
the  several  actions,  whose  names  denote  these  several  species,  were 
an  absurd  and  useless  classification  of  the  remedies, —  rather  an 
ingenious  puzzle  than  an  analytical,  natural  and  labor-saving  instru- 
mentality. Indeed,  that  body  must  have  thought  it  still  worse, 
that  every  species  of  injury  should  have  its  particular  form  of  action 
with  its  own  characteristic  name ;  or,  the  worst  of  all,  that  there 
should  be  a  set  of  forms,  or  formulae,  prepared,  prescribed  and 
allotted  to  each  action  by  means  of  which  and  in  the  shape  of  which, 
the  litigants  must  themselves  proceed  to  separate  and  arrange  the 
facts  on  which  each  relies,  and  resolve  and  adjust  the  essential  point 
of  their  controversy  for  decision.  It  annoyed  them,  one  would  sup- 
pose, that  the  litigants  should  be  restricted  and  impeded  by  these 
logical,  condensed  and  abbreviated  formulae,  to  which  they  were 
obliged  to  accommodate/  their  own  strife.  Why  not  let  them  con- 
duct their  controversy  in  their  own  way,  according  to  each  one's 
own  skill,  reason,  taste,  style  and  brevity  ?  Of  what  use,  in  the 
first  instance,  this  compulsory  and  thorough  investigation  of  the 
facts,  and  their  bearing,  to  test  their  own  case  on  this  procrustean 
bed  of  argumentation  ?  Why  not  let  the  whole  mass  go  to  the 
judge  and  the  jury  ?  There  is  the  crucible.  What  a  strange  and 
tyrannical  exaction,  all  this  special  pleading !  How  unworthy  the 
dignity  of  freemen  !  Why  make  the  parties  use  actions  at  all,  or 
trouble  them  with  such  distinctions,  or  names,  or  special  modes  of 
publicly  expressing  their  reasoning  ?  The  Legislature  seems  to  have 
supposed  that  this  business,  the  most  insatiable  and  important  busi- 
ness in  a  commonwealth,  needed  none  of  these  fixed  and  tried  modes; 
or  else,  that  it  was  not  susceptible  of  being  reduced  to  a  science 


THE   CODE   OF   PKOCEDURE.  59 

like  the  other  great  staple  labors  of  civilization  ;  that  it  must  for- 
ever be  a  scene  of  uncertainty,  delay  and  expense,  forever  a  Sysiph- 
ean  toil,  where  the  lessons  of  experience  and  sagacity  could  be  of 
no  avail.  We  cannot  need  a  different  mode  of  proceeding  in  equity 
and  law,  because  (they  assume)  the  object  of  each  is  the  administra- 
tion of  justice  on  the  same  natural  principles.  These  principles 
must,  therefore  (this  body  seems  to  have  believed),  be  reached  and 
applied  by  the  same  steps.  They  supposed,  and  thus  seem  to  have 
acted  on  this  supposition,  that  there  might  be  a  uniform  course  of 
proceeding,  in  what  had  been  so  strangely  distinguished  as  legal 
and  equitable  cases,  contrived  without  abolishing  the  remedy  for 
the  one  class  or  the  other.  These  old  Roman  and  English  methods 
of  transacting  the  business  of  litigation  had  become  so  tattered  and 
threadbare,  in  the  long-continued  and  perennial  use  to  which  they 
had  been  put  by  each  of  these  great  people,  that  it  was  quite  time 
that  they  were  flung  away  as  worn  out  and  worthless. 

Besides,  some  of  their  names  and  those  of  the  other  instruments 
belonging  to  the  scheme,  were  rank  Latin  —  "all  Latin  and  other 
"foreign  tongues"  (say  they),  as  though  the  Latin  was  a  foreign 
tongue  —  as  though  it  is  not  ours  as  much  as  any  people's  on  the 
face  of  the  earth!  Though  these  Latin  names,  so  supposed,  had 
been  used  in  our  own  country  till  every  farmer  knew  their  mean- 
ing and  spoke  them  as  easily  as  he  could  those  of  his  children,  let 
these  commissioners  ( say  they  )  take  care  that  these  words  be  at 
once  abandoned.  Let  the  distinctions  of  Covenant,  Debt,  Assump- 
sit, Trespass,  Ejectment,  Trover,  Detinue,  etc.,  be  abolished  and, 
of  course,  let  these  "  Latin  and  other  foreign  "  words,  used  for  ex- 
pressing them,  and  of  which  we  have  heard  so  much,  be  at  once 
abandoned.  We  would,  if  we  could,  thought  they,  for  the  same 
reason  that  we  abandon  these,  also  abandon  the  names  of  the  twelve 
months  of  the  year ;  the  names  of  the  twelve  constellations  of  the 
zodiac,  those  of  the  great  circles  and  phenomena  of  the  universe,  as 
well  as  of  our  beloved  political  institutions,  because  they  smack  of 
the  Latin  and  remind  us  of  our  indebtedness  to  that  great  people, 
who  once  by  arts,  arms  and  laws  governed  the  world.  These,  to 
be  sure,  we  shall  have  to  let  alone,  as  beyond  our  jurisdiction,  as 
well  as  the  terms  of  war,  of  architecture,  of  chemistry,  of  botany, 
of  agriculture,  of  medicine,  etc.,  etc.,  no  less  than  almost  all  the 
names  and  words  needed  for  the  infinite  ideas  of  a  choice  and  mag- 


60  THE   CODE   OF   PROCEDURE. 

nificent  civilization.  Carthago  delenda  est ; — let  these  Latin  words, 
which  do  come  within  our  reach,  at  least  be  gotten  rid  of,  no  mat- 
ter how  long  and  indissolubly  they  have  been  incorporated  in  the 
vital  tissues  of  all  our  jurisprudence  —  though  every  carpenter  and 
joiner,  or  sailor,  tailor  or  shoemaker,  miner,  etc.,  has,  by  far,  in  any 
sense  which  can  be  called  technical  or  artistical,  more  words  of  the 
kind  and  of  Latin  origin,  than  has  ever  been  allowed  the  lawyer. 
Let  these  few,  no  matter  how  convenient  and  familiar  their  use  has 
become,  be  at  once  abandoned,  though  that  part  of  the  act  we  use 
to  direct  it  contains  at  least  twenty  words  derived  from  that  same 
people,  without  the  use  of  which  we  could  not  have  penned  the  bar- 
barous mandate  —  words,  too,  just  as  much  Latin  and  no  less  Eng- 
lish than  these  few  ordered  to  be  smitten  from  the  vocabulary  of 
the  law,  or  of  the  lawyer. 

Such  was  the  spirit  of  the  Legislature.  Every  farmer  knew  these 
actions  of  Covenant,  Assumpsit,  etc.,  and  if  he  did  not  know  the 
logic  or  necessity  of  their  origin,  he  did  understand  their  use,  as 
much  as  the  sailor  his  chronometer,  or  the  lumberman  his  Scribner's 
scale,  in  his  department  of  labor.  Nor  had  this  Legislature  any 
more  or  higher  motive  for  destroying  this  common  law  method  of 
procedure,  than  they  could  have  had  for  breaking  the  watch  or  the 
scale  to  pieces,  or  prohibiting  their  use,  because  they  did  not  com- 
prehend the  nature  of  either.  The  distribution  of  the  seasons  could 
not  cease  to  be  apparent  in  the  heavenly  phenomena,  although  we 
were  prohibited  the  use  of  the  names  of  the  great  circles  which 
manifest  it,  because  they  are  Latin.  No  more  can  the  abolition  of 
these  Latin  words,  appropriated  to  distinguish  the  several  species 
the  subjects  of  litigation  are  susceptible  of  being  distributed  into, 
destroy  the  distinctions  these  names  have  for  centuries  been  used 
to  express.  No  more,  than  in  the  other  sciences,  can  you  have  a 
classification  or  nomenclature  of  these  principles  of  the  law  without 
the  Latin  —  the  language  of  science,  of  majesty  and  civilization. 
We  cannot  remember  its  matchless  maxims,  except  in  the  language 
in  which  we  found  them ;  far  less  can  we  express  them  in  our  own 
tongue  without  emasculating  their  vigor.  No  fibre  of  the  vast  and 
priceless  workmanship  of  the  lawyers  of  Rome  has  perished  amidst 
the  wastes  of  time,  as  have  its  broken  and  buried  forums,  temples, 
porticoes,  aqueducts,  theatres,  roads,  arches,  and  other  triumphs  of 
its  labors  of  this  kind.     Nor  can  the  act  of  the  Legislature  of  the 


THE   CODE   OF   PROCEDURE.  61 

people  of  the  State  of  New  York  deface  one  particle  of  it,  although 
they  may  drive  these  names  and  others  from  the  statute  book,  and 
compel  them  to  be  officially  disused.  Notwithstanding  their  Latin 
origin,  they  will  be  used  by  all  intelligent  men,  whose  business  it 
may  be  to  deal  with  this  great  business  of  litigation,  as  long  as  the 
civilized  nations  of  the  earth  continue  to  quarry  the  foundation  of 
their  own  systems  out  of  this  Roman  jurisprudence,  founded  on  the 
banks  of  the  Tiber,  and  transmitted  to  us  from  that  wonderful 
people. 

We  said  "  the  calamity  of  the  Code."  Now  it  is  calamitous,  be- 
cause it  sacrificed  to  the  gratification  of  these  fanatical  notions  the 
opportunity  of  restoring  to  its  pristine  and  theoretical  excellence 
this  common  law  method  of  procedure  by  simply  obviating  the  con- 
sequences of  the  relaxation  and  abuses  of  its  rules.  These  we  have 
seen  were  allowed  by  the  Revised  Statutes  to  be  continued,  pre- 
venting the  full  advantages  of  it,  but,  notwithstanding,  the  system 
was  acknowledged  in  every  quarter  as  existing.  The  distributing 
and  classifying  all  the  subjects  of  punitive  litigation  into  the  few 
several  actions  stood  wholly  unaffected,  being  the  key-stone  to  the 
reason  and  usefulness  of  the  whole  structure.  This  alone  was  of  an 
incalculable  advantage  (we  are  now  beginning  to  ajjpreciate)  in 
steadying  the  minds  of  men  on  this  subject.  To  be  sure  practically, 
on  the  record,  the  mode  was  disused  for  publicly  developing  and 
expressing  the  one  essential  point  for  decision ;  still  Special  Plead- 
ing in  theory  was  universally  received  as  belonging  to  the  scheme, 
the  implement  and  the  completion  of  its  policy.  In  actually  testing 
or  reasoning  about  the  merits  of  a  controversy,  the  lawyers  were 
accustomed  to  resort  to  it  in  their  private  preparations  for  trial ; 
and  on  the  trial  a  knowledge  of  the  use  of  its  formulae  was  deemed 
necessary  to  their  logically  developing  what  points  were  material 
or  disputed,  or  worth  disputing,  from  those  which  were  not.  The 
judge  who  tried  the  case,  in  charging  the  jury,  was  obliged  to  per- 
form the  duty  of  the  special  pleader,  and,  in  doing  it,  he  bore  in 
mind  these  labor-saving  instruments  of  ratiocination.  If  he  was  in- 
telligent he  arranged  for  the  instruction  of  the  jury  the  propositions 
of  fact  he  deemed  essential  according  to  the  method  of  the  formulae, 
which  ought,  in  the  first  place,  to  have  been  applied  to  them.  Our 
judges,  also,  in  determining,  in  banc,  questions  of  law,  were  guided 
and  enlightened  not  only  by  the  forms  of  actions,  but,  also,  in  their 


62  THE   CODE   OF   PROCEDURE. 

opinions,  assumed,  in  the  given  case,  the  analytical  and  logical  steps 
the  special  pleader  would  have  taken,  had  the  litigants  been  com- 
pelled to  evolve  the  material  and  decisive  point  instead  of  deferring 
it  to  be  done  at  the  trial.  So,  too,  our  precedents  continued  to  be 
classified  and  appropriated  to  each  species,  of  action,  and  each  took 
its  place  in  the  array  of  decisions  in  each  class.  Our  reports  were 
indexed,  and  digests  were  analyzed,  and  our  text  books  written  and 
studied,  everywhere  recognizing  that  this  system  of  actions  and 
pleading  existed,  shaping  and  explaining,  as  it  did,  all  the  dealings 
of  our  courts  and  of  our  Revised  Statutes,  with  the  business  of 
compensatory  justice.  No  matter  if  it  was  not  compulsory,  yet 
this  distinction  and  classification  of  the  actions  with  the  constant 
use  of  them  and  of  their  names  being  rigorously  enforced,  the  land- 
marks from  which  all  observations  were  taken  and  all  argumenta- 
tion measured  or  restricted,  were  preserved.  In  this  way  it  was 
that  this  system  —  though  we  were  suffering,  as  we  have  seen, 
through  the  disuse  of  its  fundamental  rules  —  kept  up  its  enlighten- 
ing and  clarifying  vigor  upon  the  ideas  of  the  profession,  and,  as  it 
were,  still  compelled  a  conformity  to  its  method  of  reasoning,  which, 
like  the  force  of  gravitation  in  the  world  of  nature,  saved  their  pro- 
fessional intelligence  from  being  dispersed  into  unlimited  space. 
The  minds  of  lawyers  at  least  revolved  around  the  centre  of  a  sys- 
tem ;  their  processes  of  thought  and  courses  of  reasoning,  when 
compared  one  with  the  other,  manifested  a  self-preserving  unity, 
and  there  was  so  held  up  in  the  common  view  a  criterion  of  each 
man's  professional  knowledge,  —  what  made  them,  at  least  in  a  good 
degree,  a  learned  body. 


THE  PLAN  OF  THE  CODE. 

The  Code  of  Procedure,  instead  of  reforming  the  abuses,  or  re- 
storing the  system  of  Special  Pleading  to  its  pristine  theory  and 
rigor  in  practice  —  though  this  had  been  done  in  England  in  1834, 
and  the  example,  for  fourteen  years,  had  been  blazing  like  the  full 
splendor  of  a  comet  in  the  eyes  of  the  world  —  abolished  it  as  worse 
than  worthless.  It  slew  it  as  we  slay  a  wild  beast.  It  ignored  the 
matchless  advantages  of  the  scheme  and  proceeded  on  the  principle 
of  attempting  to  destroy  it  altogether,  and  of  substituting  a  scheme 
of  its  own.     We  say  "attempted,"  because,  as  we  think,  it  has  al- 


THE   CODE   OP   PROCEDURE.  63 

ready  appeared,  the  old  system  of  Special  Pleading,  is  so  elemental, 
founded,  like  geometry,  so  deeply  in  the  nature  of  things,  that  no 
legislative  act  may  destroy  the  distinctions  of  the  actions  or  their 
necessity,  or  the  superior  certainty,  celerity  and  economy  of  its 
method  of  compelling  the  litigants  to  adjust  the  essential  point  for 
decision  themselves,  and  to  express  the  steps  of  their  reasoning  in 
prescribed  formulae,  in  the  first  instance,  publicly  on  the  record,  as 
a  condition  precedent  to  the  privilege  of  any  trial  at  all.  Whatever 
there  is  in  the  Code  now  tending  toward  this  end,  we  think  it  is  ap- 
parent, on  comparison,  that  it  is  owing,  in  every  particular  and  de- 
gree of  excellence,  to  its  identity  with  some  instrumentality  which 
belonged  to  this  old  system,  supposed  to  be  so  summarily  slain  or 
superceded ;  or  more  or  less  resembling  it ;  instead  of  its  being  any 
novelty  or  ingenuity  of  its  own.  The  attempt  has,  however,  embar- 
rassed, if  it  has  not  altogether  defeated,  the  accomplishing  of  these 
objects  as  compared  with  the  working  of  the  system  even  as  relaxed 
or  abused,  as  it  was  allowed  to  be  by  the  Revised  Statutes ;  and  to 
an  intolerable  degree,  if  you  compare  the  operation  of  this  Code  with 
what  might  have  been  effected,  had  that  system  been  restored,  as  it 
was  in  England,  to  its  original  design,  vigor  and  completeness. 
Whatever  there  is  in  it  that  we  cannot  identify  with  such  particu- 
lars already  existing,  was  spun  out  of  the  brains  of  the  Codifiers,  in 
obedience  to  this  Legislative  act,  instead  of  being  the  natural  growth 
of  any  experience  and  necessity. 

The  system  which  these  severe  masters  had  constructed  and  per- 
petuated, and  which  had  prevailed  so  long,  that  we  were  unconscious 
of  the  blessings  it  conferred,  or  of  the  reasons  on  which  it  is  found- 
ed, was  abolished.  The  Codifiers,  proceeded,  in  doing  this,  on  the 
principle  of  conforming  all  the  legal  remedies,  or  actions  at  law,  to 
the  method  known  as  the  "  equitable  "  or  the  "  suit  in  equity,"  that 
is,  by  changing  the  actions  at  law  for  damages  into  suits  in  equity. 
The  code  of  1848  provided: 

§  62.  "  The  distinction  between  actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  such  actions  and  suits,  heretofore  existing,  are 
abolished ;  and,  there  shall  be  in  this  State,  hereafter,  but  one  form 
of  action,  for  the  enforcement  or  protection  of  private  rights  and 
the  redress  of  private  wrongs,  which  shall  be  denominated  a  civil 
action." 

§  118.  "  All  the  forms  of  pleadings  heretofore  existing  are  abol- 
ished ;  and  hereafter  the  forms  of  pleading  in  civil  actions,  and  the 


64:  THE   CODE   OF   PBOCEDUKE. 

rules  by  which  the  sufficiency  of  the  pleadings  is  to  be  determined 
shall  be  those  which  are  prescribed  by  this  act" 

Their  observations  under  this  section  appear  as  follows,  and  dem- 
onstrate that  this  sole  idea  is  at  the  bottom  of  their  scheme  : 

"  As  has  been  already  remarked  the  change  in  the  mode  of  plead- 
ing is  the  key  of  the  reform  which  we  propose.  Without  this,  we 
should  despair  of  any  substantial  and  permanent  improvement  in 
our  modes  of  legal  controversy.  With  it,  we  think  we  can  frame  a 
code  of  procedure  simple  in  its  construction,  easily  understood  and 
efficient  for  all  purposes  of  justice" 

In  constructing  this  new  scheme  they  assumed :  "  That  but  for 
"  the  set  forms  (the  formulae)  of  the  common  law  there  would  have 
"  been  no  occasion  for  the  court  of  equity.  The  one  gave  rise  to  the 
"  other" — as  though  the  distinction  between  these  was  one  of  mere 
form.  They  assumed,  too,  u  That  the  system  of  actions  rests  on 
"  the  fallacy  that  all  remedies  can  be  foreseen."  Then,  after  having 
also  assumed  that  this  common  law  method  of  proceeding  had  been 
the  cause  of  all  the  causes  of  the  evils  we  were  laboring  under  in 
litigation,  the  Codifiers  go  on  to  say : 

"  In  place  of  the  system  we  have  thus  explained,  we  propose  one 
that  appears  to  us  natural  and  simple,  easily  understood  and  capa- 
ble of  effecting  every  good  object  which  any  system  can  effect.  We 
propose  that  the  plaintiff  shall  state  his  case  according  to  the  facts, 
and  ask  for  such  relief  as  he  supposes  himself  entitled  to  ;  that  the 
defendant  shall  by  his  answer  point  out  his  defence  distinctly.  This 
form  of  allegation  and  counter  allegation  will  make  the  parties  dis- 
close the  cause  of  action  and  defence  so  that  they  may  come  to  trial 
prepared  with  the  necessary  proofs.  If  the  defendant  in  his  answer 
allege  a  matter  not  referred  to  in  the  complaint,  but  which  he  in- 
sists constitutes  a  defence,  the  plaintiff  may  reply  new  matter. 
Should  the  reply  contain  new  matter  it  is  to  be  deemed  denied  by 
the  defendant,  either  absolutely  or  as  capable  of  being  explained 
away,  and  therefore  not  having  the  effect  intended.  So  that  when 
the  reply  does  not  contain  new  facts,  we  have  a  real  issue ;  when 
it  does,  we  have  a  constructive  issue,  just  such  an  one  as  we  now 
have  when  non  est  factum  is  pleaded  in  covenant  with  notice  of 
special  matter.  We  conceive  that  taking  the  cases  together  it  is 
better  to  stop  with  the  reply.  These  could  scarcely  ever  happen 
where  it  would  be  of  any  use  to  go  further,  were  the  parties  at 
liberty  to  do  so.  By  the  time  the  reply  is  made  the  facts  will  have 
been  so  developed  as  to  leave  no  doubt  of  the  precise  point  in  dis- 
pute. If  the  right  to  go  further,  however,  were  given,  it  would  be 
liable  to  abuse  and  frequently  cause  delay.  In  chancery  no  pleading 
is  allowed  beyond  the  replication."     (p.  141.) 


THE    CODE   OF   PKOCEDURE.  65 

Afterward,  again,  they  say  : 

"  The  trial  is  now  the  only  place  where  there  is  anything  anal- 
ogous to  the  ancient  oral  pleading.  That  was  in  the  presence  of 
the  court,  and  rested  under  its  supervision,  being  in  fact  nothing 
more  than  the  forming  of  the  issue  by  the  judge  from  the  respec- 
tive allegations  of  the  parties.  Indeed  our  system  had  its  origin 
in  a  practice  now  obsolete.  When  the  presence  of  the  judge  was 
withdrawn,  it  lost  ah  essential  part  of  its  real  character.  Its  present 
substitute  is  the  trial.  Here  the  plaintiff  opens  his  case  and  calls 
his  witnesses ;  the  defendant  does  the  same ;  when  the  testimony 
is  finished  the  defendant  goes  over  his  case  again  and  makes  his 
statement  of  the  points  and  of  the  evidence.  The  plaintiff  follows 
with  his.  Thereupon  the  judge  charges  the  jury.  Then  comes  the 
true  analysis  of  the  case  y  the  development  of  the  real  points  in  the 
controversy  which  no  system  of  Special  Pleading  can  dispense  with. 

"  We  have  shown,  we  hope,  that  there  are  no  substantial  advan- 
tages derived  from  our  present  system  of  pleading.  How  great,  on 
the  other  hand,  are  its  disadvantages  ?  First,  the  present  pleadings 
are  many  of  them  untrue.  The  declaration  in  trover  is  almost 
always  false.  The  common  counts  and  general  issues  in  assumpsit 
are  generally  false  —  so  are  the  statements  of  the  venue,  another 
averment  of  time  and  place  in  most  of  the  actions.  We  need  not 
go  further  into  particulars  to  show  that  truth  which  ought  to  be 
the  first  essential  in  proceedings  in  courts  of  justice  is  not  only 
disregarded  generally  and  upon  system,  but  that  the  disregard  of 
truth  is  forced  upon  the  parties  by  the  present  system  of  pleading. 
Second,  the  present  system  of  pleading  cannot  be  retained  unless  we 
retain  also  the  distinction  between  legal  and  equitable  remedies.  The 
wit  of  man  can  never  assimilate  the  action  of  trover  and  a  suit  in 
equity."     (p.  144.) 

We  have  no  time  or  space  to  notice  the  extravagances  of  very 
many  of  these  ideas  of  the  Codifiers.  They  seem  to  involve  a  total 
misapprehension  of  the  system  of  actions  and  its  plan  and  forms  of 
pleading  —  instigated  by  viewing  the  relaxation  and  the  abuses  of 
its  rules,  as  allowed  and  practiced  under  the  Revised  Statutes,  as 
being  apart  of  the  scheme  and  inevitably  belonging  to  it.  But  two 
of  their  peculiar  ideas,  if  true,  strike  at  the  merits  of  the  system. 
One  is  that  "  this  system  of  actions  rests  on  the  fallacy  that  all 
"  remedies  can  be  foreseen  ;"  and  the  other,  that  its  mode  of  pleading 
"  forces  a  disregard  of  truth  upon  the  parties."  As  to  the  first, 
nothing  can  be  more  palpable  than  that  it  is  no  fallacy.  The  sole 
remedy,  as  we  have  seen,  in  every  one  of.  the  actions  at  law,  is 
damages,  either  for  a  breach  of  a  contract  or  the  commission  of  a 
tort.  The  remedy,  therefore,  in  every  one  of  them  is  invariable, 
and  can  be  foreseen  just  as  invariably.    As  to  the  second  proposition, 


66  THE   CODE   OF   PROCEDURE. 

the  object  of  all  pleading  consists  only  with  truth.  Yet  there  is  no 
means  of  enforcing  it,  because  there  is  no  way  of  proving  the  false- 
hood of  a  statement,  till  the  trial.  It  is  not  true,  however,  that 
there  is  anything  in  the  formulae  or  their  use,  making  falsehood 
necessary  or  convenient  or  safe.  On  the  other  hand,  if  the  rules  of 
the  system  are  enforced,  we  know  of  no  plight  in  which  a  litigant  can 
be  put,  where  he  could  falsify  with  less  safety  or  advantage.  (See 
Stephens  on  Pleading.) 

Now  it  was  in  consequence  of  these  ideas  that  the  Codifiers  pro- 
vided for  a  Complaint  ( in  their  one  universal  and  omnivorous  form 
of  action  )  and,  besides  a  demurrer  limited  to  certain  specified  parti- 
culars, an  Answer  and  Replication,  after  the  meaning  and  manner 
of  those  in  vogue  and  used  in  the  suit  in  equity.  The  complaint  is 
to  be  a  statement  of  facts  constituting  the  cause  of  action.  The 
Answer,  in  respect  to  each  allegation  of  the  Complaint  controvert- 
ed by  the  defendant,  is  to  have  a  specific  denial,  and  in  case  he  could, 
a  statement  of  any  new  matter  to  which  the  plaintiff"  might  reply 
denying  particularly  each  allegation  of  the  Answer  he  controverted, 
or  alleging  any  new  matter  he  might  have  in  avoidance  of  the  Ans- 
wer not  inconsistent  with  the  Complaint.  Each  party  in  making 
these  respective  statements  of  facts  must  do  so  "  in  ordinary  and 
"  concise  language  without  repetition,  and  in  such  a  manner  as  to 
"  enable  a  person  of  common  understanding  to  know  what  was  in- 
"  tended^     (§§  120,  128  and  131.     1848.) 

The  plaintiff  can  unite  as  many  causes  of  action  as  he  has,  provided 
these  all  belong  to  some  one  of  seven  classes  of  injuries  or  subjects 
of  litigation.  The  defendant  can  set  up  as  many  defences  as  he  has 
in  his  Answer.  In  his  Replication  the  plaintiff  can  also  set  forth 
any  new  matter  consistent  with  his  Complaint. 

The  Codifiers  in  addition  laid  down  a  few  rules  they  denominate 
general,  whose  object  they  declare  to  be  "  to  dispense  with  unne- 
"  cessary  statements,  to  require  conciseness  and  to  unite  in  one  ac- 
"  tion  all  the  controversies  between  the  parties  which  can  be  con- 
"  veniently  disposed  of  together,"  Yet  the  only  mode  for  curbing  or 
regulating  the  pleadings  they  provide  appears  to  be  one,  in  analogy 
to  the  exceptions  formerly  taken  to  the  Bill  or  Answer  in  Chancery, 
for  striking  out  irrelevant  or  redundant  statements,  or  for  securing 
certainty  or  definiteness  in  a  pleading.  It  is  the  privilege  of  an  ag- 
grieved party  to  resort  to  a  motion,  the  dernier  resort  of  the  lawyer. 


THE   CODE   OF  PBOCEDTJBE.  67 

The  particular  facts  on  which  the  judgment  or  other  determina- 
tion of  a  court  of  special  jurisdiction  rests,  or  those  which  show 
the  performance  of  conditions  precedent  in  a  contract,  are  dispensed 
with,  as  being  unnecessary.  The  denial  of  the  plaintiff's  general 
averment  of  jurisdiction,  or  of  performance,  is  made  to  put  at  issue 
whatever  facts  he  must  prove  to  establish  either  —  a  supposed  con- 
ciseness on  the  part  of  the  Codifiers  solely  obtained  by  the  omission 
of  statements  of  matter  essential  at  some  time,  if  not  preliminarily, 
to  be  specified  aud  determined. 

By  the  statement  of  facts  constituting  the  cause  of  action,  defence, 
etc.,  the  Codifiers  mean  these  shall  be  detailed  by  each  litigant  cir- 
cumstantially, and  in  his  own  way,  as  in  a  suit  in  equity,  with  no 
view  whatever  to  the  extraction  of  the  essential  question  in  contro- 
versy, which  was  the  object  of  the  use  of  the  special  formula?  —  the 
only  scheme  by  ichich  it  could  ever  be  done.  The  Codifiers,  of  course, 
do  not  mean  a  statement  of  fact  in  the  sense  of  the  formulas,  or  else 
these  formulae  would  have  exactly  answered  their  purpose.  They 
mean  pleading  at  large.  No  rules  are  laid  down  to  prevent  prolix- 
ity, uncertainty,  obscurity  or  confusion  ;  nor  any  calculated  to  pro- 
duce a  single  or  material  issue  of  any  kind.  Of  one  hundred  law- 
yers who  undertake  to  state  the  facts  constituting  a  cause  of  action, 
or  a  defence,  etc.,  of  the  same  class,  each  chooses  his  own  mode, 
and,  consequently,  the  cause  or  the  defence  may  obviously  assume 
and  appear  in  one  hundred  different  varieties,  more  or  less  varied 
in  statement,  description  and  circumstances.  Without  stopping  to 
contrast  this  method  with  the  advantages  of  the  special  formulae, 
we  need  only  point  out  the  vast  superiority  of  the  latter  on  the 
score  of  convenience,  brevity,  certainty,  dispatch  and  economy,  by 
calling  attention  to  the  specimens  of  the  consequences  of  the  former, 
lumbering  up  our  Clerks'  offices  and  the  shelves  of  the  Court  of 
Appeals. 

The  actions  of  Covenant,  Debt,  Assumpsit,  Trespass,  Replevin 
and  Case,  being  the  names  of  the  natural  and  distinct  classes  of  in- 
juries compensated  by  damages,  could  not  by  the  old  common  law 
method  of  distribution  be  united,  being  thus  distinguished  and 
named,  because  the  difference  of  these  classes  is  fundamental  and 
their  union  regarded  as  absurd  as  inconvenient,  tending  to  multifa- 
riousness, confusion,  complexity,  delay  and  expense. 

It  may  have  happened  that,  through  the  mistake  or  ignorance  of 
5 


68  THE   CODE   OF   PROCEDUEE. 

his  lawyer,  some  party,  in  the  course  of  very  long  intervals,  had 
suffered  under  the  old  system,  by  reason  of  a  misjoinder  of  actions 
—  although  the  distinctions,  on  which  this  classification  is  founded, 
are  so  palpable  and  elementary ;  so  conspicuously  signified,  too,  by 
their  appropriate  names.  Conceding  for  instance  (what  is  a  fallacy 
the  most  apparent )  the  inexpediency  of  rigorously  enforcing  this 
rule  of  prohibiting  a  joinder  of  the  different  species,  the  Codifiers, 
it  should  seem,  only  make  bad  worse,  for  what  advantage  has  their 
classification,  made  for  the  purpose  of  ostracising  a  few  Latin  or  ar- 
tistic names,  over  this  old  one,  in  any  conceivable  particular,  for 
distributing,  assorting,  and  expediting  the  business  of  litigation. 
See  their  novel,  abstract  and  nameless  nomenclature !  — 

"  The  plaintiff  may  unite  in  the  same  complaint  several  causes  of 
action  whether  they  be  such  as  have  heretofore  been  denominated 
Legal  or  Equitable,  or  both,  where  they  all  arise  out  of, 

"1.  The  same  transaction  or  transactions  connected  with  the 
same  subject  of  action. 

"2.     Contract,  express  or  implied ;  or 
^  "  3.     Injuries  with  or  without  force  to  person  or  property,  or 
either;  or 

"  4.     Injuries  to  character  ;  or 

"  5.  Claims  to  recover  real  property  with  or  without  damages 
for  the  withholding  thereof;  or 

"6.  Claims  to  recover  personal  property  with  or  without  dam- 
ages for  the  withholding  thereof;  or 

*'  7.  Claims  against  a  trustee  by  virtue  of  a  contract,  or  by  oper- 
ation of  law." 

See,  too,  that,  after  all,  this  novel  and  nameless  division  of  the  sub- 
jects of  litigation  ends  in  circumscribing  this  supposed  and  blessed 
convenience  of  joining  together  these  different  species.  Yet  the 
prohibition  must  arise  at  last,  somewhere,  even  in  this  new  dispen- 
sation, although  it  is  difficult  to  see  why  the  convenience  of  dispos- 
ing of  as  many  controversies  as  possible  in  one  action  should  be 
limited  at  the  points  it  is:  "But  all  causes  of  actions  so  united 
"  must  all  belong  to  one  only  of  those  classes,  and  must  equally  af- 
"  feet  all  the  parties  to  the  action,  and  not  require  different  places 
"of  trial." 

If  it  be  convenient,  in  the  sense  of  the  Codifiers,  to  unite  Cove- 
nant and  Assumpsit,  can  any  possible  reason  be  given,  why  it  might 
not  be  equally  convenient  to  unite  and  dispose  of  Assumpsit  and 
Trover  or  Trespass  together  ? 


THE   CODE   OF   PROCEDURE.  69 

Certainly,  actions  for  tort  are  simpler  and  less  complex  than  ac- 
tions on  contracts ;  the  judgment,  or  relief,  is  the  same  in  all,  that 
is  damages,  and  really  there  is  no  greater  dissimilarity  between 
them  than  between  Covenant  and  Assumpsit  on  any  point  of  con- 
venience. Why  leave  it  to  the  option  of  the  plaintiff,  to  split  up 
his  several  causes  of  action  of  the  different  species,  if  his  own  or  the 
public  advantage  demands  their  union  ?  Interest  reipublicce  ut  sit 
finis  litium. 

"  Names  are  things,"  and  ideas  without  names  are  fugitive  and 
useless,  because,  without  the  precision,  brevity,  intelligence  and  sta- 
bility which  names  give  them,  it  is  impossible  to  communicate  our 
thoughts,  one  with  another,  touching  any  subject  with  which  we 
are  mutually  dealing.  The  names  of  this  old  distribution  are  abbre- 
viated instrumentalities  of  almost  incalculable  convenience  in  deal- 
ing with  legal  topics ;  nor  now,  without  incessantly  using  them,  is 
it  possible  for  lawyers,  either  in  or  out  of  court,  or  for  judges,  either 
on  or  off  the  bench,  to  discuss  satisfactorily  the  subjects  of  litiga- 
tion. 

These  names,  as  we  have  observed,  will,  in  spite'  of  any  legisla- 
tive or  official  act,  be  used  and  perpetuated  among  intelligent  men, 
so  long  as  it  is  their  duty  to  specify  the  nature  of  these  divers  spe- 
cies of  injuries  of  which  the  transactions  of  men  are  susceptible. 
Nor,  but  for  the  light,  heat  and  aid  these  old  names  continued  to 
shed  or  yield,  could  this  business  of  litigation  have  been  done  at  all, 
in  any  intelligent  sense,  under  these  cold,  abstract  and  nameless  de- 
finitions which  the  Codifiers  have  chosen  and  introduced.  As  it 
now  is,  this  new  objectless  distribution  of  theirs,  besides  its  other 
remediless  inconveniencies,  increases  the  danger  of  the  mischiefs  of 
misjoinders  three-fold  compared  with  any  of  which  the  old  one, 
notwithstanding  the  Latin  words,  was  susceptible. 

These  are  substantially  all  the  rules  by  which,  in  the  language  of 
the  Code  itself,  "  The  sufficiency  of  a  pleading  is  determined.',  In- 
deed, it  prohibits  the  use  of  any  others  than  its  own  for  this  object; 
that  is,  "  the  sufficiency  of  the  complaint,  answer  and  reply."  It 
prohibits,  therefore,  for  fear  of  any  logical  test  or  power  being  at- 
tempted on  them,  the  use  of  any  of  the  old  rules  of  pleading,  belong- 
ing to  the  system  of  formula?,  as  well  as  to  any  other  method  of 
reasoning  intelligently  on  a  subject  of  litigation — "  old  rules  which," 
says  Lord  Mansfield,  "  are  founded  in  strong  sense  and  in  the 


70  THE   CODE   OF   PROCEDURE. 

"  soundest  and  closest  logic,  and  so  appear,  when  well  understood  and 
"  explained"  The  incessant  amendments  to  which  the  Code  has  been 
annually  exposed,  have  but  slightly,  if  any,  changed  its  method  of 
pleading.  The  policy  of  the  Codifiers  of  coaxing  the  litigants  to 
gather  together  all  the  controversies  they  conveniently  could  into 
one  action,  has,  however,  been  extended.  The  Legislature  has  since 
authorized  the  defendant,  besides  as  many  defence^  as  he  could,  to 
set  up  in  his  answer  what  is  termed  a  counter-claim,  or,  if  he  has 
so  many,  a  dozen  of  them ;  to  which,  on  the  other  hand,  the  plain- 
tiff can  reply  in  the  same  way  the  defendant  could  to  his  complaint. 
It  is  a  provision  which  symmetrically  tops  off  the  scheme  of  accu- 
mulating together,  in  one  controversy,  as  many  questions  of  law  and 
fact  as  possible  for  an  unprofessional  tribunal.  We  have  no  occa- 
sion to  deal  further  with  its  particulars.  We  deal  with  the  nature 
and  tendency  of  this  new  system,  so  called.     See  what  it  does ! 

Let  the  plaintiff  have  his  claim  for  a  breach  of  covenant,  a  breach 
of  the  condition  of  a  penal  bond,  a  breach  of  an  express  and  of  an 
implied  assumpsit,  and,  by  the  scheme  of  the  Code,  he  may  unite 
them  in  one  action,  because  that  assumes  these  several  causes  may 
be  conveniently  united  in  one  and  disposed  of  together.  Now  let 
the  defendant  deny  each  of  these  four  in  the  first  place  generally, 
conceding  nothing  and  putting  the  plaintiff  to  his  proof  on  the  trial 
of  every  material  particular ;  and,  in  the  second  place,  let  him  set 
up  one  defence  by  way  of  avoidance  with  new  matter  to  each  of 
these  four.  Then,  in  the  third  place,  let  him  state  and  allege  a 
counter-claim  to  each  of  the  four.  Suppose  he  does  this,  and  then 
let  the  plaintiff  also  resort  to  a  general  denial  of  the  four  counter- 
claims, and,  secondly,  to  a  defence  by  way  of  new  matter  to  each  of 
the  four.  Now,  stopping  at  this  point,  and  bearing  in  mind  that 
in  this  plight  the  plaintiff  and  defendant  each  may  on  the  trial  show 
as  many  matters  by  way  of  defence  or  avoidance,  if  he  can,  which 
he  has  not  put  on  the  record,  as  he  has  expressed  on  it,  and  you 
have  the  issues  so  called  of  which  in  one  action  the  genius  of  the 
Code  of  Procedure  is  susceptible,  in  disposing  together  of  all  the 
controversies  between  the  same  parties  conveniently ;  twenty-four 
being  expressed  on  the  record,  and  at  least  as  many  more  construc- 
tively raised,  though  not  expressed  at  all,  but  liable  to  be  contested 
on  the  trial.  Now  let  the  plaintiff  double  his  causes  of  action,  two 
of  each,  and  the  defendant  his  defences  and  counter-claims,  and  you 


THE   CODE   OF   PROCEDURE.  71 

still  have  not  a  particle  of  what  might  not  be  done  within  the  scope 
and  policy  of  the  scheme  of  the  Code  for  clarifying,  arranging  and 
dispatching  this  great  and  paramount  business  of  litigation. 

Let  it  be  borne  in  mind,  too,  that  as  yet,  except  in  a  few  unim- 
portant particulars,  no  criterion  or  test  has  been  applied  to  any  of 
these  issues  or  rather  contradictions,  and  that  the  legal  effect  of 
each  one  —  what  is  material  or  immaterial,  disputed,  or  undisputed 
—  remains  open  and  undetermined.  The  sufficiency  or  legal  value 
of  each  has  got  to  be  manifested  and  adjusted  on  the  trial  before 
the  judge  and  jury.  Every  point  of  law  or  of  fact  is  deferred  to 
the  trial  —  where  all  questions  accumulate,  and  where,  using  their 
own  chosen  language,  the  Codifiers  say :  "  Comes  the  true  analysis 
"  of  the  case,  the  development  of  the  real  points  in  controversy  lohich 
"  no  system  of  Special  Pleading  can  dispense  with" 

To  a  scene  like  this  it  is  that  they  invite  and  inveigle  the  parties, 
all  the  witnesses  these  suppose  to  be  needed  provisionally  in  any 
contingency ;  that  at  the  trial,  with  their  lawyers,  they  may  watch 
the  chances,  or  the  ups  and  downs,  of  this  heady  fight.  Of  course 
the  trial  is  a  miserable  chance-medley,  where  blood  and  pulse,  au- 
dacity or  endurance,  fear,  favor  or  affection,  take  their  moods  of  win- 
ning the  day.  Out  of  these  tumults  there  is  little  opportunity  for 
discriminating  justice  ;  and  if  anything  does  emerge,  it  is  in  the 
shape  of  a  rabble  of  points  or  questions  yet  to  be  settled  or  adjust- 
ed in  another  desultory  scuffle,  in  which  neither  learning,  sagacity 
or  dignity  can  be  of  any  avail. 

We  submit  that  this  is  a  fair  example  of  what  this  scheme  of  the 
Code  is  susceptible.  It  is  its  obvious,  declared  and  inevitable  ten- 
dency. But,  thank  God,  even  at  the  very  worst,  the  affairs  of  men 
do  not  run  the  dismal  length  of  this  disastrous  policy  —  what  in 
truth  this  novel  plan  tempts  the  wretched  litigants  to  undertake. 
The  transactions  of  men  do  not  furnish  materials  for  this  insatiable 
theory  —  materials  wherewith  to  work  out  the  details  of  such  a 
frightful  scene  of  litigation.  Scarcely  ever  does  one  man  have  with 
another,  at  a  time,  more  than  one  cause  of  action  of  the  same  class 
or  of  all  classes ;  more  than  one  breach  of  covenant,  of  a  bond,  of 
an  assumpsit,  or  one  trespass,  etc.  Scarcely  ever  is  a  citizen  thus 
cruelly  oppressed  or  afflicted.  But,  if  he  were,  no  "  man  of  common 
"  understanding  "  would  be  likely  to  impede  or  risk  his  own  rights 
on  one  by  joining  them  to  the  destiny  of  the  other.     It  is  thus,  too, 


72  THE   CODE   OF  PROCEDURE. 

with  the  defendant.  His  defences  and  counter-claims  do  not  grow 
on  every  bush,  or  in  every  law  office.  Give  him  all  the  scope  the 
policy  of  the  Code  does,  he  must,  in  practice,  in  the  ordinary  course 
of  human  affairs,  soon  reach  the  limit  of  his  capacity  to  enjoy  these 
infinite  privileges  of  pleading.  Yet  it  is  this  scope  the  plan  gives 
the  defendant,  few  as  are  the  real  defences  he  ever  can  have,  at 
most,  to  make  in  cases  at  law,  or  of  strict  right  —  to  contracts  al- 
ready broken,  or  torts  already  committed  —  that  the  evils  of  this 
scheme  of  general  pleading  at  large  more  manifestly  begin.  Hon- 
estly and  in  good  faith,  the  case  is  an  exceptional  or  extraordinary 
one,  where,  in  an  action  of  this  kind  at  law,  the  defendant,  beyond 
a  mere  denial  or  general  issue,  if  he  be  allowed  to  use  it,  has  it  in 
his  power  to  set  up  more  than  one  matter  of  fact  constituting  a  de- 
fence by  way  of  avoidance.  Of  what  conceivable  use  is  it,  then, 
that,  by  the  grace  of  this  Code  of  Procedure,  he  may  set  up  fifty  ? 
Nor  ought  he  ever  be  permitted  to  set  up  more  than  one,  unless  he 
does  it  on  cause,  showing  the  singular  necessity.  No  more  ought 
the  plaintiff,  for  the  same  reason,  to  be  allowed  to  reply  double,  ex- 
cept likewise  on  cause  shown.  Such  are  the  rules,  too,  at  common 
law,  and  no  evils  were  ever  heard  of  resulting  from  them,  except 
those  of  vigilance,  brevity,  dispatch  and  economy. 

The  evils  of  departing  from  these  vital  rules,  which  experience 
and  necessity  had  first  established  and  so  long  perpetuated  ( togeth- 
er with  the  abuse  of  the  general  issue)  both  in  this  country  and  in 
England,  we  have  striven,  with  a  good  deal  of  detail,  to  explain. 
On  the  face  of  this  new  scheme,  if  the  observations  we  have  made 
are  worth  consideration,  it  is  self-evident  how  immensely,  compared 
with  what  they  could  be  under  the  Revised  Statutes,  these  kinds  of 
evil  are  amplified,  encouraged,  yea,  compelled,  as  it  were,  by  design, 
and  aggravated  at  least  an  hundred  fold.  The  Codifiers,  indeed, 
assume  and  declare :  "  The  present  system  of  pleading  "  (  meaning 
the  system  of  Special  Pleading  by  formulae  we  have  been  dealing 
with,  in  use  so  many  centuries)  "  cannot  be  retained,  unless  we  retain 
"  also  the  distinction  between  legal  and  equitable  remedies.  The 
"  wit  of  man  could  never  assimilate  the  action  of  trover  and  a  suit 
"  in  equity."  No  doubt  of  this,  or  that  it  is  true  of  the  action  of 
covenant,  assumpsit,  trespass,  etc.,  no  less  than  of  trover.  No  more 
can  the  wit  of  man  assimilate  any  one  of  these  common  law  actions 
to,  or  confound  it  with,  a  suit  in  equity,  because  the  distinction 


THE  CODE   OF  PROCEDURE.  73 

between  legal  and  equitable  remedies  is  elemental  and  eternal  in 
the  nature  itself  of  the  two  things.  "  Man's  wit,"  whether  in  the 
shape  of  a  Legislative  fiat,  or  of  the  device  of  a  Code  of  Procedure, 
•may  not  confound  or  assimilate  them  —  though  he  resort  to  the  pit- 
iful device  of  calling  a  declaration  for  a  breach  of  a  contract  or  the 
commission  of  a  tort,  a  "complaint ;"  or  the  general  issue  and  a  plea 
in  bar,  an  "  answer ;"  or  a  judgment  for  damages,  "  relief;"  or  a  de- 
cree for  equitable  relief,  a  "judgment,"  etc.  One,  we  have  seen,  is 
merely  attendant  on  the  other,  supervisory  and  occasional,  extra  or- 
dinem  /  the  other  is  the  common  law  method  used  for  redressing 
strict  rights  —  the  injury  of  contracts  already  broken,  and  of  torts 
already  committed,  by  one  uniform  and  invariable  mode :  —  com- 
pensation in  damages ;  the  subjects  of  it  being  simple,  few  and  lim- 
ited in  number ;  uniform,  constantly  corresponding  the  one  with  the 
other  and  being  repeated  over  and  over  again  —  all  the  incidents, 
possible  to  occur  in  relation  to  each  of  them,  susceptible  of  being 
expressed  in  prescribed  formulae. 

The  nature  of  this  ordinary  kind  of  litigation,  of  which  the  vast 
bulk  of  all  there  can  be  in  a  civilized  State  consists,  we  have  ex- 
plained, as  it  is  distinguishable  from  that  unusual  or  extraordinary 
interposition  of  a  court  of  equity  in  special  cases,  on  special  facts 
justifying  it,  with  the  course  and  consequences  of  this  common 
method,  to  which  it  is  designed  to  be  suppletory  or  auxiliary.  Now 
the  logicaland  inevitable  consequence  of  this  attempt  of  the  Legis- 
lature to  reduce  "  all  cases  of  legal  and  equitable  cognizance  to  one 
uniform  mode  of  proceeding  "  ( if  in  truth  these  words  can  have  any 
precise  meaning  attached  to  them  ),  would,  as  Justice  Selden  has 
observed,  if  really  carried  out,  end  with  the  abolition  of  one  or  the 
other  class  of  remedies.  In  spite  of  the  Code  and  its  theory,  the 
distinction  between  legal  and  equitable  remedies  has  been,  as  much 
as  it  ever  was,  judicially  recognized  and  enforced  ;  no  less  than  the 
methods  of  proceeding  growing  out  of  this  essential  difference  of 
their  nature  and  object.  The  Codifiers  attempted  simply  an  impos- 
sibility. The  forms,  even  of  the  common  law  actions,  and  the  prin- 
ciples on  which  their  classification  are  founded  originally,  have  in  a 
great  measure  been  preserved  and  vindicated  judicially,  notwith- 
standing this  crude  and  audacious  scheme  of  assimilating  them  to 
those  of  a  suit  in  equity.  Even  the  common  counts  are  rescued  and 
saved  by  our  Court  of  Appeals.     (Farren  vs.  Sherwood,  17  N.  Y., 


74  THE   CODE   OF   PEOCEDUEE. 

227.)  You  may  now  show  all  that  you  ever  could  under  the  com- 
mon counts  —  no  matter  the  peril  of  the  surprise  —  a  promissory 
note,  bill  of  exchange,  any  written  agreement  performed  on  the 
plaintiff's  part,  etc.,  without  even  the  device  of  the  old  notice  of  the 
Revised  Statutes. 

It  is  good  pleading  now  for  the  plaintiff  to  express  the  fact  con- 
stituting any  legal  cause  of  action  in  the  old  formula  he  was  once 
compelled  to  use  before  the  Code.  The  courts  so  far  have  triumphed 
over  the  Legislature.  So,  too,  it  would  now  be  judicially  determined, 
that  any  matter  constituting  a  plea  in  bar  could  be  stated  in  the 
well  known  formulae  appropriate  for  the  purpose.  So,  too,  of  matter, 
when  permitted,  in  reply  to  the  plea  or  answer.  But  the  trouble  is, 
that  the  courts  have  no  means  of  compelling  the  statements  of  fact 
on  which  the  parties  rely  to  be  put  in  these  few,  concise,  logical, 
uniform,  fixed  formulae.  The  Code  indeed  prohibits  the  use  of  any 
other  rules  than  its  own.  It  substitutes,  in  place  of  these  formulae 
at  law,  the  Bill,  Answer,  and,  sometimes,  the  Replication,  peculiar 
to  the  Court  of  Equity, —  meaning,  beyond  all  question  as  we  have 
seen,  to  allow,  if  not  compel,  the  litigants  to  make  their  mutual 
allegations,  or  contradictions  rather,  circumstantially  in  that  way, 
and  to  form  that  species  of  issues  so-called  in  this  class  of  cases  at 
law  which  were  once  only  usual  in  that  forum.  This  limitation 
(stopping  the  litigants  at  the  general  replication),  of  course,  it  had 
been  found  necessary  to  prescribe  in  that  Court,  or  the  stream  of 
mutual  allegations  might  have  flowed  on  forever.  It  was  expedient 
and  self-protecting  to  stop  it  compulsorily  with  this  RepJication. 
This  did  well  enough,  too,  before  a  Chancellor.  Perhaps  the  Bill 
and  Answer,  with  a  general  Replication,  were  the  best  mode  in 
which  the  nature  of  the  given  case  could  be  brought  before  him,  as 
every  question,  whether  of  law  or  of  fact,  had  to  be  searched  out  and 
decided  by  him  himself.  Elementally  his  interposition  to  grant  the 
relief  sought  depended  on  matters  submitted  to  his  discretion,  and 
these  also  depended,  more  or  less,  on  the  conscience  of  the  defend- 
ant, and  were  variously  or  circumstantially  stated.  Although  the 
Chancellor  proceeded  on  the  assumption  of  fixed  principles,  he  took 
care  (and  this  was  the  nature  of  his  duty)  that  these  were  applied 
according  to  the  circumstances  of  each  particular  case.  The  relief 
was  never  a  matter  of  strict  right,  like  a  judgment  in  an  action  at 
law  in  case  the  breach  or  the  tort  existed.     The  mutual  allegations 


THE   CODE  OF  PROCEDURE.  75 

of  the  parties  could,  therefore,  be  safely  made  at  large  — as  they 
were  with  no  view,  as  at  law,  to  the  evolution  of  one  essential  ques- 
tion of  fact  by  the  effect  of  the  pleading  itself;  adjusting  it  for 
decision  on  the  responsibilities  of  the  pleaders.  No  formulae  being 
prescribed  or  consistent  with  the  objects  in  view,  the  pleaders  could 
indulge  themselves  in  the  vagueness  and  prolixity,  natural  to  all 
professional  or  judicial  statements,  to  any  degree  each  one's  own 
taste,  skill  or  sagacity  allowed.  Nor  was  there  any  mode  devised 
in  that  forum  of  restraining  this  tendency  to  amplify,  vary  or  pro- 
tract, but  by  the  one  party  excepting  to  the  other's  pleading  for 
irrelevance  or  immateriality,  etc. —  an  uncouth  and  clumsy  resource 
in  the  nature  of  a  motion  to  the  court  —  the  very  essence  of  uncer- 
tainty and  delay. 

The  contradictions  the  pleadings  exhibited,  to  which  were  given 
the  name  of  Issues,  bore  no  resemblance  to  the  one  compelled  to  be 
evolved  by  pleading  specially  at  law  —  the  result,  as  we  have  seen,  of 
that  severe  analysis,  the  necessity  of  separating  the  matters  of  law 
from  those  of  fact  compelled,  in  compliance  with  this  fundamental 
policy  of  our  English  and  American  administrative  jurisprudence. 
The  object  of  these,  therefore,  was  not  the  adjustment  of  a  single 
and  decisive  point  of  law  or  of  fact.  The  mischiefs  of  the  vague 
and  prolix  verbiage  the  pleaders  chose  to  employ,  half  needed  for 
purposes  of  discovery,  became  comparatively  harmless,  if  of  no 
utility,  because  the  Chancellor,  or  Judge,  had,  as  a  part  of  his  duty 
and  labor,  to  overlook  and  analyze  all  the  mass  of  these  mutual  and 
qualified  allegations,  that  he  might  settle  and  determine  in  his  own 
mind,  at  his  own  leisure  and  in  his  own  way,  to  what  extent  and 
in  what  exact  sense  these  statements  were  to  be  taken,  made  on  one 
side,  admitted  or  disputed  on  the  ottyer.  Finally  and  retrospec- 
tively, he  was  obliged  to  separate  what  was  disputed  or  material 
matter  and  what  was  not,  that  he  might  be  sure  of  the  essential 
question.  In  this  method  of  proceeding  there  is  no  preliminary 
resolution  of  the  particular  subject  of  controversy.  It  is  not  meant 
there  should  be  before  hearing.  Nor  is  there,  as  on  a  trial  in  an 
action  of  law,  any  great  and  inexorable  necessity  of  it.  All  is 
deferred,  and  meant  to  be,  to  the  hearing  or  trial.  In  these  pro- 
ceedings neither  the  parties  nor  the  judge  have,  before  the  hearing, 
what  is  called  a  public  exposition  on  the  record  of  the  essential 
points  in  the  controversy  to  guide  and  bind  them.    These  are  ex- 


76  THE   CODE   OF  PROCEDURE. 

pected  and  have  to  be  adjusted  on  a  retrospective  analysis  of 
these  pleadings  at  large.  The  litigants  before  the  hearing  have 
no  certain  knowledge  of  what  are  to  be  the  real  points,  except  what 
each  one's  own  private  discretion  or  sagacity  determines,  explor- 
ing beforehand  the  way  to  see  provisionally  what  proof  may  be 
required,  and  the  points  to  which  it  is  to  be  directed. 

It  is  this  old  method  of  proceeding  in  Chancery  in  the  compara- 
tive few  and  exceptional  cases  of  equitable  cognizance,  which  the 
Legislature  has  thus  substituted,  prescribed  and  compelled,  so  far 
as  it  could,  in  legal  actions,  or  actions  of  strict  right,  constituting 
ninety-nine  hundredths  of  the  litigation  of  the  State.  Each  party 
is  to  state,  in  his  own  way,  according  to  this  new  scheme,  his  case  ; 
but  he  is  to  do  it  "  in  ordinary  and  concise  language  without  repe- 
"  tition."  There  is  no  constraining  force  in  such  a  mere  requisition. 
The  stream  of  vagueness  and  prolixity  and  repetition  can  run  on, 
checked  or  shortened  only  by  each  man's  own  taste,  capacity  or 
skill  or  garrulity.  No  formulae  are  prescribed  to  confine  or  reg- 
ulate the  flood  or  turn  or  guide  its  course.  No  means  are  furnished 
the  judges  to  vary,  avert  or  change  it.  Nor  are  any  provided  for 
the  parties,  wherewith  the  one  may  protect  himself  from  the  other, 
but  the  desperate  resource  of  a  motion  in  the  nature  of  a  forlorn 
hope.  In  theory  the  scheme  changes  every  action  of  law  into  a  suit 
of  equity.  It  follows  that  the  point  of  the  controversy,  on  which 
the  merits  must  turn,  or  on  which  the  litigants  or  their  lawyers  are 
willing  it  should  turn,  is  not  expected  to  be  developed  and  fixed  by 
the  effect  of  the  pleadings  itself,  which  is  the  object  at  law,  the  cer- 
tainty of  the  issue,  and  what  the  special  pleading  by  formulae  se- 
cures. The  sufficiency  of  the  plaintiff's  case,  or  the  defence  that 
the  defendant  sets  up,  as  well  as  what  either  may  legally  be,  con- 
tinues to  be  left  open,  suspended  and  undetermined  until  the  trial. 
The  undisputed  or  immaterial  matters  of  fact,  as  distinguishable 
from  what  is  to  be  deemed  material  and  disputed,  no  where  appear 
to  be  beforehand  separated,  sifted  or  cleared  away.  Nor  is  it  ex- 
pected to  be  by  the  mere  act  of  the  parties  or  of  their  lawyers,  on 
whom  the  duty  and  responsibility  of  ascertaining  the  essential  ques- 
tion, and  presenting  it  ready  for  decision,  ought  always  to  be  im- 
posed. Because  there  is  no  compulsory  process  or  motive  on  their 
part,  or  even  any  power,  to  arrest  it ;  everything  good,  bad  or  indif- 
ferent, almost  always  more  or  less  involved,  directly  or  indirectly, 


THE   CODE    OF   PKOCEDUKE.  77 

in  every  controversy,  is  postponed  to  the  trial,  and  becomes  there  h 
accumulated  into  a  thick  mass  of  wordy,  circumstantial  contradic- 
tions, whose  object  has  not  been  to  compel  the  litigants  to  produce, — 
throwing  off  all  the  rest, —  the  single  decisive  question,  in  the  short- 
est, most  direct  and  logical  manner. 

In  this  shape  it  is  that  what  we  call  the  "  issues  "  go  down  to 
the  trial  before  the  judge  and  jury  without  any  matter  essential  to 
the  decision  being  adjusted  or  presented,  necessarily  appearing  as 
such  in  any  enlightened  judicial  sense.  These  indecisive  mutual 
contradictions,  so  far  as  the  litigants  are  permitted  to  continue 
them,  are  made,  too,  generally  before  any  prior  or  thorough  inves- 
tigation of  the  facts  of  the  case.  This  always  will  be  the  mischief 
when  there  is  no  urgent  necessity,  or  compulsory  formulae,  for  pre- 
cision and  certainty.  The  lawyers  will  contrive  to  express  these  in 
obtuse  generalities,  in  the  most  copious,  variable  and  indefinite  man- 
ner, rather  with  a  view  of  so  amplifying  or  circumstantially  varying 
them,  as  to  cover  or  meet  whatever  state  of  evidence  shall  appear 
on  the  trial,  than  for  the  purpose  of  exhibiting  on  the  record  the 
case  they  expect  to  prove,  or  by  which  they  mean  to  stand  or  fall. 
As  there  is  no  judicial  compulsion,  so  there  is  no  motive  to  the  law- 
yers to  undertake,  in  the  first  instance,  or  on  their  own  motion,  to 
settle  and  adjust  some  one  decisive  point  as  between  themselves, 
which  alone,  cleared  of  every  other  matter,  they  agree  on  present- 
ing for  trial.  Their  responsibility,  as  between  themselves  and  their 
clients  or  that  they  owe  the  commonwealth,  is  shirked  and  post- 
poned to  the  trial,  to  the  judge  and  to  the  chances  of  the  trial, —  no 
matter  for  the  wasteful  expenditures  of  time  and  money  to  their 
clients  in  bringing  witnesses  at  random  to  court,  maintaining  them 
there,  waiting  on  what  turns  up.  At  vast  public  expense  and  in- 
convenience, the  court,  instead  of  being  a  tribunal  for- disposing  of 
single  issues,  settled  and  adjusted  by  the  litigants  at  their  own  risk 
and  responsibility,  becomes  the  mere  medium  of  pleading, —  of  as- 
certaining .what  there  is,  if  anything,  between  the  suitors  to  be 
tried.  The  court  is  chiefly  made  use  of  for  this  purpose.  It  be- 
comes the  instrument  for  doing  that  reasoning,  or  separation  of  the 
facts  and  law,  the  litigants  themselves  should  have  been  compelled 
to  do  before  they  ventured  to  trouble  the  court  or  the  public.  The 
Code  is  gotten  up  on  this  assumption. 

Yet  it  is  self-evident  that  in  this  mode  of  analyzing  the  case,  the 


78  THE   CODE   OF    PROCEDURE. 

disadvantages  to  the  litigants  and  the  public  are  enormous ;  that 
the  multiplicity  of  points  has  no  limit  but  what  is  to  be  found  in 
the  incapacity  of  the  lawyers,  and  of  the  scope  of  the  case  itself,  for 
making  them.  In  theory,  there  is  none  ;  nothing  to  arrest  the  con- 
sequences of  this  indiscriminate  accumulation  of  all  matters  for  so- 
lution at  the  trial  —  for  neither  party  can  foresee  the  issues  which 
the  judge  may  deem  essential,  what  the  other  side  does,  or  what 
facts  will  be  disputed,  or  be  deemed  by  either  side  worth  disputing. 
Of  course  the  litigants  must  go  provisionally  prepared  to  prove 
this  or  that  set  of  facts,  or  half  a  dozen  others,  it  may  be,  —  because 
the  necessity  of  proving  any,  or  what  particular  one,  depends  on 
the  view  the  judge  takes,  who  by  this  scheme  controls,  and  has  the 
power,  in  spite  of  the  pleadings  or  of  the  lawyers,  of  controlling,  ar- 
bitrarily if  he  pleases,  the  destiny  of  the  whole  strife.  The  party, 
therefore,  must  come  prepared  to  prove,  not  what  his  own  lawyer 
may  deem  fit,  but  any  fact  which,  by  any  possibility,  can  be  deem- 
ed material  by  the  judge  himself.  He  may  be  mistaken  if  he  relies 
on  his  own  judgment  or  that  of  his  lawyer,  and  be,  on  the  instant, 
unable  to  prove  what,  though  he  and  his  lawyer  did  not,  he  finds 
the  judge  does,  deem  disputed  or  material.  There  might  just  as 
well  be  no  pleadings  at  all  before  trial,  so  far  as  this  kind  at  large 
is  of  any  use  in  discovering  and  adjusting  the  essential  question  of 
the  controversy,  or  for  apprising  either  party  of  it,  or  the  judge  and 
the  jury.  Indeed,  we  can  see,  it  would  be  better  and  safer  to  have 
none.  When  the  statements  are  thus  generally  and  indefinitely 
made  at  large,  they  rather  serve  to  mislead  than  to  enlighten  —  to 
betray  into  negligence,  surprise,  or  mistakes.  Instead  of  apprising 
the  litigant,  or  anybody  else,  so  that  he  shall  be  sure  of  what  the 
particular  question  may  be,  they  either  conceal  from  him,  on  what 
the  one  side*  or  the  other  relies  —  or  mislead  the  one  or  the  other  in 
respect  to  it.  To  plead  orally,  in  the  first  instance,  in  open  court, 
and  there  adjust  the  point  of  the  strife,  would  not  only  be  safer  and 
more  certain,  but  more  economical  —  doing  it  at  once  under  the  su- 
pervision of  the  judge.  As  it  now  is,  the  pleadings  in  most  cases 
are  limited  to  the  complaint  and  answer ;  and,  therefore,  with  only 
this  sort  of  constraint,  and  with  such  motives,  there  cannot  be  ob- 
tained one  single  and  decisive  issue,  evolved  and  fixed  by  the  state- 
ments themselves,  over  which  the  judge  has  no  control,  and  with 
which  he  has  nothing  more  to  do  than  to  try  it.     What  the  real  is- 


THE    CODE   OF   PROCEDURE.  79 

sue  may  be,  stands  open.  Divers  pleas  or  defences  being  allowed, 
as  well  as  divers  replies,  when  a  reply  is  proper,  these,  together 
with  the  general  denial  in  all  cases,  postpone,  necessarily,  all  propo- 
sitions of  fact  or  law  essential  to  the  solution  of  the  strife,  to  the 
trial.  There,  it  seems,  the  Codiiiers  meant  them  to  go ;  and  that 
there  should  be  had  the  first  intelligent  investigation  of  the  facts  on 
which  the  respective  litigants  are  relying,  or  of  their  legal  effect  or 
value,  under  the  supervision  of  the  judge.  "  There"  they  say, 
"  comes  the  true  analysis  of  the  case  — the  development  of  the  real 
"  points  in  the  controversy,  which  no  system  of  Special  Pleading 
"  can  dispense  with."  Again  they  say :  "  The  change  in  the  mode 
"  of  pleading  is  the  key  of  the  reform  we  propose.  Without  this, 
"  we  should  despair  of  any  substantial  and  permanent  improvement 
"  in  the  modes  of  legal  controversy.  With  it,  we  think  we  can  form 
"  a  code  of  legal  procedure,  simple  in  its  construction,  easily  under- 
"  stood,  and  efiicient  for  all  purposes  of  justice." 


THE  CONSEQUENCES  OF  THIS  PLAN.  • 

Now,  this  is  another  instance  of  the  frightful  consequences  of  fa- 
naticism, yielding  or  sacrificing  all  considerations  of  every  other  na- 
ture to  gratifying  this  one  idiomatic  idea :  "  The  abolition  of  the 
"forms  of  actions  and  pleadings  in  cases  at  common  law."  There 
is  but  one  other  mode  of  pleading  known  in  the  world,  viz.,  that  of 
pleading  at  large,  circumstantially,  or  with  a  detail  of  the  facts,  in- 
stead of  this  Special  Pleading,  so  indissolubly  connected  with  the 
system  of  actions  at  law.  "  The  key  to  this  reform,"  they  say,  "  is 
"  this  change  in  the  mode  of  pleading,"  the  effect  of  which,  as  we 
have  seen,  is  to  postpone  all  questions  to  the  trial,  "  where,"  using 
their  own  language,  "  comes  the  true  analysis  of  the  case,  the  de- 
"  velopment  of  the  real  points  of  the  controversy,  which  no  system 
"  of  Special  Pleading  can  dispense  with."  It  is  this  "  true  analysis" 
which  is  the  object  of  Special  Pleading  —  abandoning,  at  each  and 
every  step,  each  and  every  matter  but  the  essential  and  disputed,  in 
search  of  the  one  single  issue.  It  means  to  have  this  done,  beforehand; 
in  advance  of  the  trial  to  ascertain,  settle  and  adjust  on  the  record 
either  the  point  of  law  or  the  question  of  fact,  whichever  be  the  re- 
sult of  the  logical  conflict.  It  means  that  this  analysis  shall  be  done 
not  only  at  first,  but  that  there  be  no  trial  until  it  is  done.     It  means 


80  THE   CODE   OF   PROCEDURE. 

that  this  shall  be  done  by  the  acts  of  the  parties  themselves,  who 
shall  be  compelled  to  the  use  of  the  certain,  fixed,  logical  formula? 
prescribed  and  designed  for  this  very  purpose,  and  to  the  observ- 
ance of  the  well  known  rules  prescribed  for  the  use  of  the  formula?, 
that  they  may  test  their  own  case  and  develop  one  single  issue  to 
be  referred  solely  by  itself  for  decision,  cleared  and  stripped  of  all 
undisputed  or  immaterial  statements,  or  which  ought  to  be,  in  right 
reasoning,  so  treated. 

ISTow  we  have  endeavored  to  attract  attention,  not  only  to  the  rea- 
sonableness of  this  method  of  the  Common  Law  of  preliminarily  an- 
alyzing the  controversy,  but  to  its  unquestionable  superiority  and 
advantages  —  aye  !  to  its  downright  necessity.  We  have  shown, 
we  think,  that,  abstractedly  considered,  this  mode  of  compelling  the 
litigants  to  find  out  and  present  the  main  question  consists  in  sim- 
ply applying  to  their  controversy  by  means  of  the  formula?  that  an- 
alytical process  by  which  the  mind,  even  in  its  own  private  consid- 
eration of  a  subject,  arrives  at  the  real  point  of  dispute,  or  which  it 
is  material  to  dispute,  or  on  which  its  logical  fate  depends. 

We  have  shown,  also,  that  this  application  of  this  process  can  be 
actually  and  readily  made  in  actions  at  law,  and,  therefore,  ought 
to  be  compelled,  by  distributing  the  mass  of  matter  really  material, 
in  the  shape  of  detached  and  conflicting  propositions  of  fact,  which 
the  parties  in  truth  do  dispute  —  the  one  party  setting  in  array  con- 
secutively his  own  against  those  of  the  other,  either  confessing  or 
avoiding  the  prior  one,  until  by  the  legal  conflict  the  true  state  of 
the  strife  between  them  is  ultimately  ascertained  as  the  result  of 
their  own  alternate  statements. 

The  logical  formula?  used  for  this  analysis,-  state  what  is  called  an 
ultimate,  or  definitive,  fact,  which,  if  true,  entitles  the  party  using 
it  to  some  right  in  law.  Sometimes  the  fact,  which  a  formula  states, 
is  called  the  conclusion  of  those  special  facts,  or  circumstances,  we 
denominate  evidence.  Duress,  accord  and  satisfaction,  tender,  pay- 
ment, etc.,  are  each  of  them  an  instance  of  one  of  these  definite  or 
ultimate  facts,  to  which  a  principle  of  law  can  be  attached,  or  of 
which  a  right  in  law  can  be  affirmed.  These  instances  explain,  too, 
what  is  meant  by  the  use  of.  the  word  fact  in  Special  Pleading,  as 
distinguishable  from  those  other  special  facts,  the  party  using 
them  puts  in  evidence  to  prove  the  formula,  or  its  fact,  e.  g.  duress, 
tender,  accord  and  satisfaction,  payment,  etc.     Each  of  these  for- 


THE   CODE   OF   PROCEDURE.  81 

mulae,  not  only  states  a  fact  of  this  kind,  but  by  implication  the 
right  or  principle  of  law  it  involves,  of  which  the  party  using  it 
seeks  to  avail  himself,  in  case  he  proves  it.  Every  fact  of  this  kind 
has  its  formula,  and,  if  proved,  entitles  the  litigant  to  the  benefit  of 
its  legal  effect,  or  the  right  the  law  of  it  gives  him.  Such  are  the 
facts,  and  their  meaning  in  law,  stated  in  the  formulm.  Therefore, 
when  a  man  has  it  in  his  power  to  use  one  of  them,  he  is  stating  a 
logical  reason  why  he  should  have  the  advantage  of  the  legal  prin- 
ciple belonging  to  it.  Bearing  in  mind  this  nature  of  these  formulm, 
it  is  plain  to  see  why  a  logical  argumentation  by  the  use  of  them 
can  be  conducted  by  the  parties  in  analyzing  their  controversy,  be- 
cause each  formula  is  a  proposition  of  fact,  which,  if  true,  gives 
some  right  in  law.  We  have  seen  how  very  few  and  simple  are  the 
subjects  of  the  actions  at  law.  We  have  seen,  too,  that  all  the 
propositions  of  fact  of  this  kind,  on  which  either  party  can  rely  in 
law  by  way  of  claim  or  defence,  are,  also,  comparatively  few,  sim- 
ple, constant,  known  and  foreseen.  Those,  of  which  the  defendant 
can  avail  himself,  do  not  exceed  three  dozen  in  all  the  actions. 
These  are  as  capable  of  being  distinguished,  named  and  christened, 
as  a  man's  children,  e.  g.,  payment,  tender,  duress,  etc.,  to  the  end 
of  the  list.  So,  too,  of  every  fact  capable  of  being  used  by  either 
party  at  any  subsequent  step  of  the  analysis,  e.  g.,  the  replication, 
rejoinder,  etc.  These  formulae,  therefore,  represent  every  fact  of 
this  grade  in  law,  which  has  ever  been  made  use  of  in  these  actions, 
or  which  ever  can  be,  in  behalf  of  either  party  entitling  either  to 
some  right  by  reason  of  it  in  the  successive  steps  of  the  ratiocination. 
For  centuries  these  formulae  have  thus  expressed  all  the  facts  which 
can  exist  in  this  kind  of  litigation,  of  which  the  litigants  can  avail 
themselves,  under  any  circumstances  whatever.  Probably  no  other 
will  ever  exist,  unless  it  be  created  by  a  statute.  (See  pages  18  to  31.) 
We  owe  the  origin,  use  and  excellence  of  these  formulae  to  the 
necessity  of  separating  matters  of  fact  from  those  of  law,  in  order 
to  comply  with  the  favorite  principle  of  our  administrative  jurispru- 
dence, —  "  that  the  one  be  referred  to  an  unprofessional,  and  the 
other  to  a  professional  tribunal."  For  this  purpose,  these  formulae 
have  become  just  as  much  a  scientific  instrumentality  in  this  system 
of  actions,  as  is  Logarithms,  or  Algebra,  in  the  business  of  mathe- 
matics. Their  use,  or  their  usefulness,  or  their  necessity,  is  just  as 
much  a  question  of  science,  as  either  Logarithms  or  Algebra :  no 


82  TBE   CODE    OF   PROCEDURE. 

more  than  either  a  matter  of  opinion  or  expediency.  The  question 
is  simple.  Why  should  this  science,  older  and  actually  more  indis- 
pensable and  of  more  use  to  the  abbreviation  and  economy  of  human 
labor  a  thousand  fold  than  either  Logarithms  or  Algebra,  be  dis- 
used or  destroyed  ?  What  reason  is  there,  why  the  plaintiff  should 
not  be  compelled  to  state  the  contract  or  the  tort  he  alleges,  in  the 
shape  of  these  formulae  prescribed  for  the  species  to  which  it  be- 
longs ?  So,  too,  if  the  defendant  denies  the  contract  or  the  tort,  why 
should  he  not  be  held  to  this  denial  of  his  and  the  consequences  of 
making  it,  in  case  the  plaintiff  on  the  trial  prove  the  one  or  the 
other  ?  As  long  as  he  denies  the  contract  or  the  tort,  why  should 
he  be  allowed  to  set  up  one  or  more  special  matters  (e.  #.,  payment, 
release,  tender,  etc.)  utterly  inconsistent  with  his  denial,  so  that  he 
may  have  an  issue  on  the  theory  there  is  no  contract  or  tort,  and, 
also,  one  or  more  on  the  theory  there  is  ?  Ought  the  defendant  to 
be  permitted  to  set  up  such  a  special  matter  or  plea,  unless  he  aban- 
dons the  contestation  of  the  contract  or  tort  alleged  ?  Then,  if  he 
does  set  up  the  special  matter,  let  the  truth  of  this  fact,  if  the  plain- 
tiff concedes  its  law  and  denies  it,  be  the  sole  question.  Or,  if  the 
plaintiff  concedes  both  its  truth  and  law,  relying  on  some  new  fact 
he  sets  up  to  avoid  the  legal  effect  of  the  plea,  let  the  truth  of  it  be 
the  sole  question,  if  the  defendant  concedes  its  law  and  denies  it. 
So  of  the  rejoinder,  rebutter,  etc.  Why  should  either  of  the  parties 
be  allowed  to  contest  any  other  matter  but  the  fact,  which  their 
own  reasoning  with  the  formulae  evolves  and  manifests  to  be  the 
sole  essential  point  on  which  their  controversy  turns?  Why  let 
them,  at  large,  accumulate  indiscriminately  objections  of  law  and 
fact,  that  they  may  experiment  on  each  other's  capacity  to  prove,  in 
a  legal  way,  the  affirmative  of  many  particulars,  the  use  of  the  for- 
mulae would  demonstrate  to  be  undisputed  or  immaterial  to  the  real 
point  of  contestation  ? 

These  logical  or  judicial  formulae,  by  which  this  triumph  of  the 
legal  art  is  effected,  are,  as  we  have  already  seen,  coeval  with  the 
system  of  actions.  During  the  pernicious  relaxation  of  its  rules, 
and  the  co-existing  enormity  of  paying  the  lawyers  in  proportion  to 
the  number  of  folios,  these  formulae,  when  used,  became  amplified, 
swollen  and  defiled  by  an  ignoble  verbiage  or  tautology,  which  bur- 
dened and  overwearied  the  sense.  But  these  were  professional  in- 
firmities —  those  of  the  lawyer,  not  belonging  to  the  design  or 


THE  CODE   OF   PROCEDURE.  83 

scheme  of  Special  Pleading,  because  one  of  its  plainest  objects  or 
effects,  is  to  control  this  professional  indulgence  in  these  obnoxious 
foibles,  by  avoiding  the  mischiefs  of  the  taste  or  skill  or  license  of 
individual  statement,  and  restricting  the  lawyer  to  the  use  of  cus- 
tomary and  concurrent  expressions  or  terms.  It  contemns  verbos- 
ity, and  does  not  admit  of  it.  Probably  it  is  the  only  method  ( for 
we  know  of  no  other  of  that  tendency)  ever  devised,  which,  if  its 
rules  be  enforced,  secures  such  brevity,  certainty  and  uniformity  of 
language  in  transacting  the  business  of  litigation.  Indeed,  in  their 
own  proper  sphere,  these  formulae  are  conceived  in  as  clear,  terse, 
pure,  choice  words  and  expressions,  as  our  language  is  capable  of 
in  the  hands  of  the  best  and  most  expert,  as  much  so  even  as  those 
employed  and  renowned  in  the  Liturgy.  In  this  shape  it  is  that 
these  formulae  now  appear  as  used  in  England  since  1834.  The 
whole  of  them,  prescribed  or  needed  or  convenient  in  all  the  actions, 
could  be  printed  in  less  than  fifty  pages,  —  in  far  less  compass  than 
the  Code  itself,  and  in  very  far  less  than  many  single  cases  now,  by 
their  very  bulk,  clogging  up  the  Court  of  Appeals  for  the  sole  pur- 
pose of  determining  a  question  of  law.  We  refer  the  reader  to  an 
examination  of  them  as  they  appear  in  Archibold's  Nisi  Prius,  vols. 
i.  and  ii.,  ed.  of  1845.  For  the  rules  by  which  the  advantages  of 
their  use  are  compelled  and  secured,  see  Stephens  on  Pleading; 
Gould's  Pleadings  ;  or  Chitty,  the  edition  of  1844. 

We  have  also  called  attention  to  the  use  of  this  Special  Plead- 
ing at  Rome  and  in  England  for  centuries,  and  to  the  fact  that  in 
all  its  rigor  it  has  been  reinstated  in  the  latter  country  since  1834. 
Now  we  submit  to  every  candid  reader,  that  this  method  of  Special 
Pleading  in  actions  of  strict  right,  if  it  be  rigorously  enforced,  is 
the  only  true  scheme  of  analyzing  the  case,  and  of  developing  the 
real  points  at  the  right  time,  that  is,  before  the  trial ;  that  this 
policy  of  compelling  the  litigants  themselves  by  the  use  of  these  for- 
mulae or  propositions  .of  fact,  logically  to  settle  and  adjust  the  ques- 
tion on  which  the  controversy  turns,  to  be  then,  and  only  then,  re- 
ferred for  decision,  is  the  only  scheme  by  which  it  is  possible  that 
the  great  mass  of  litigation,  if  done  at  all,  can  be  done  with  certain- 
ty or  satisfaction,  intelligently,  expeditiously  and  economically. 
The  public  good,  no  less  than  these  considerations  of  certainty,  bre- 
vity, dispatch  and  economy  in  behalf  of  the  litigants,  demands  that 
this  true  and  thorough  analysis  shall  take  place  in  the  beginning 
6 


84  THE    CODE   OF   PROCEDURE. 

before  the  trial,  so  that  the  essential  point  or  question  in  dispute  be 
evolved  beforehand,  as  it  always  will  be,  if  the  facts  be  submitted 
to  the  test  of  these  logical  and  appropriate  formulae.  It  is  self-evi- 
dent that,  if  it  be  done,  in  limine,  as  the  first  step  of  steps  in  the 
strife,  a  very  large  proportion  of  the  litigation  which  would  other- 
wise oppress  the  litigants  and  the  courts,  would  be  stopped  or  sup- 
pressed; and  that,  in  respect  of  the  other  portion,  it  is  also  mani- 
festly calculated  to  arrest  the  prodigious  multiplicity  of  points  by 
the  parties  being  compelled  to  arrive  at  and  submit  one  principal 
and  certain  issue,  —  all  other  undisputed  or  immaterial  matters  hav- 
ing been  swept  away  or  abandoned  at  each  step  of  the  process  by 
the  effect  of  their  own  successive  and  alternate  allegations. 

THE  CONSEQUENCES  IN  THIS  COURT  OF  APPEALS. 

What  have  been  the  consequences  of  this  reform,  so-called? 
These  already  sufficiently  appear  by  the  contrast.  Whatever  evils 
we  were  enduring  under  the  Revised  Statutes,  through  the  relaxa- 
tion and  abuse  of  the  rules  of  this  common  law  method  of  procedure, 
have  been  aggravated  an  hundred  fold.  This  truth  is  most  strik- 
ingly, no  less  than  shamefully,  signified  in  the  condition  of  the  Court 
of  Appeals.  The  fact  that  the  highest  appellate  court  in  our  com- 
monwealth (where  unquestionably,  if  our  mode  of  administering 
justice  in  the  common  courts  were  ordinarily  selected  or  judicious, 
comparatively  few  cases  could  ever  appear)  is  utterly  and  hopelessly 
overwhelmed  with  appeals  to  such  an  extent,  that  it  is  impossible  to 
have  one  heard  and  determined  sooner  than  five  to  six  years,  dem- 
onstrates some  radical  defect  in  this  new  scheme  or  "  reform." 
Indeed,  the  plight  of  this  court  became  so  flagrant  and  conspicuous, 
that  the  evil  led  to  the  passage  of  the  act, —  "  To  perfect  an  amend- 
"  ment  of  the  Constitution  providing  for  five  Commissioners  of 
"  Appeals,  February  2d,  1865,  to  hear  and  determine  all  appeals 
"  then  pending  in  the  Court  of  Appeals,  which  might  be  transferred 
"  to  them  by  said  Court."  We  need  no  more  graphic  discription 
of  the  state  of  the  business  of  litigation  in  our  State,  than  is  implied, 
as  well  as  contained,  in  "  An  appeal  in  favor  of  the  Constitutional 
"  Amendment,  and  for  the  Commissioners  of  the  Court  of  Appeals 
"  by  the  Union  State  Central  Committee,  March  2d,  1865." 

"The  necessity  for  this  amendment  is  clearly    apparent  to  all 


THE   CODE   OF   PROCEDURE.  85 

who  are  familiar  with  the  condition  of  causes  now  pending  in  the 
Court  of  Appeals.  The  number  of  causes  entered  on  the  calendar 
of  that  court,  for  January,  1865,  is  1,063.  In  addition  to  these, 
there  is  a  large  number  of  appeals  pending  in  that  court,  which 
parties  have  omitted  to  notice  and  place  on  the  calendar,  because 
they  know  there  is  no  prospect  of  their  being  reached  during  the 
present  year,  for  which  the  calendar  is  made  up.  At  each  Term, 
also,  a  large  number  of  new  appeals,  in  preferred  causes,  is  placed 
on  the  calendar,  which  must  be  first  heard  before  the  body  of  the 
calendar  can  be  called.  At  each  Term,  the  usual  number  of  causes 
disposed  of  is  only  fifty,  and  this  is  as  large  a  number  as  can  be 
wisely  and  fairly  examined  by  that  court.  As  there  are  but  four 
terms  held  in  each  year,  it  will  be  seen  that  to  dispose  of  the  causes 
actually  on  the  calendar,  without  the  addition  of  new  causes,  would 
require  between  five  and  six  years.  But  considering  the  influx  of 
preferred  causes,  and  the  pendency  of  appeals  not  yet  placed  on  the 
calendar,  it  may  be  fairly  estimated,  that  without  more  judicial 
force,  the  present  calendar  cannot  be  closed  up  in  less  than  eight 
years,  to  say  nothing  of  the  new  appeals  that  will  be  taken  to  the 
court  during  the  intervening  period." 

Now  it  is* true  that  this  proposition  for  relief  was  defeated.  It 
was  owing,  however,  to  the  universal  consciousness  of  its  helpless- 
ness to  ameliorate  the  evil,  or  to  remove  the  cause  of  it.  That  the 
evil  was  prodigious,  seems  to  have  been  just  as  deeply  the  universal 
conviction.  It  would  have  required  five  or  six  courts,  like  the  one 
proposed,  or  like  the  Court  of  Appeals  itself,  to  have  cleared  its 
calendar,  and  to  have  kept  it  clear.  The  scheme,  "  the  reform," 
has  thus  proved  a  monstrous  failure,  in  the  eyes  of  all  men,  for  the 
certain,  intelligent,  economical  and  satisfactory  dispatch  of  this 
great  branch  of  human  labor, —  the  business  of  litigation.  The 
cause,  the  adequate  cause,  for  this  extraordinary  failure  is  found  in 
the  abolition  of  this  common  law  method  of  procedure,— "  The 
forms  of  actions  and  pleadings  in  cases  at  common  law.'''' 

There  are  defects,  no  doubt,  in  the  organization  of  the  courts. 
This,  perhaps,  might  be  improved.  No  doubt  there  are  too  many 
judges.  The  vulgar  outcry  for  more  judicial  force,  however  much 
it  betokens  the  evil,  deludes  us  as  to  the  remedy,  no  less  than  as  to 
the  cause.  It  is  a  very  coarse  idea,  that  the  administration  of  the 
laws,  in  a  civilized  State,  demands  a  multiplicity  of  judges.  If  it 
does,  you  may  be  sure  that  the  system  in  vogue  for  transacting  it,  is 
too  crude  and  unscientific.  If  it  does,  you  may  be  sure  that,  in 
some  degree,  more  or  less,  the  method  of  dispatching  it  has  ceased 
to  be  a  regulated  science,  and  become  instead  a  kind  of  crude  awk- 

$ 


86'  •  THE   CODE   OF   PROCEDURE. 

ward  labor ;  that  the  lawyers  and  judges  have  ceased  to  be  a  learn- 
ed body,  trained  to  the  discipline  and  practice  of  the  science  of  the 
administrative  part  of  the  law  ;  have  become  mere  day  laborers  — 
working  each  one  the  best  he  can,  at  his  task,  or  his  trade,  —  urged 
on  by  the  simple  motive  of  getting  bread  and  meat  enough  for  him- 
self and  family.  Men  who  look  for  the  amelioration  of  the  modes 
of  administering  the  law,  by  constantly  increasing  the  judicial  force, 
mean  to  effect  this  object  of  theirs  by  the  dint  of  mere  numbers. 
They  act  upon  the  conviction  —  so  delusive  and  superficial  —  that 
this  labor,  like  excavating  the  earth,  or  like  chopping  the  forest,  is 
facilitated  according  to  the  numerical  force  engaged.  The  object 
of  science,  as  applied  to  business  of  any  kind,  is  to  seek  the  method 
of  dispatching  it  with  the  greatest  certainty,  satisfaction,  celerity 
and  economy.  This,  if  achieved  at  all,  it  effects  by  generalizing  and 
abbreviating  the  particulars,  and  reducing  them,  as  far  as  possible, 
to  appropriate  formulae.  Let  us  find  the  examples  of  this  truth  in 
the  business  of  insurance,  banking,  finance,  navigation,'  war,  etc. 
Like  every  other  of  the  great  species  of  labor,  this  business  of  liti- 
gation, the  most  exacting  and  inexorable  of  them  all,  must  be  com- 
pelled to  be  reduced  to  the  certain,  fixed,  brief  methods  —  the  for- 
mulm — of  which  experience  and  necessity  have  proved  it  to  be 
susceptible,  —  to  which,  in  analyzing  a  controversy  the  litigants 
must  accommodate  and  adjust  its  facts,  by  which  not  only  they,  but 
their  lawyers  and  the  judges  must  be  rigorously  bound.  The 
plagues  of  Egypt  could  be  more  patiently  borne,  than  the  swarm 
of  the  divers  evils  of  litigation,  unless  it  be  fixed  by  certain  rules  to 
an  inflexible  observance  of  which  its  rage  and  natural  love  of  license 
»can  be  restrained,  like  that  of  the  winds : 

"  Ni  faciat,  maria,  ac  terras  ccelumque  profundum, 
Quippe  ferant  rapidi  secum  verraut  que  per  auras." 

If  the  observations  in  which  we  have  indulged  be  founded  in  truth, 
*his  business  of  litigation  is  not  only  susceptible  of  being  reduced  to 
certain,  logical  and  inflexible  formulas,  but  it  actually  has  been  for 
centuries.  To  these  every  man's  strife  had  to  be  accommodated, 
and  by  these  only  could  it  be  adjusted.  The  abandonment  of  these 
methods  and  the  substitution  of  this  new  scheme,  we  submit  to  all 
who  will  take  the  pains  to  investigate  the  subject,  adequately  ac- 
counts for  all  this  miserable  scene  of  shame,  failure  and  imbecility. 


THE   CODE   OF    PROCEDURE.  87 

The  adequate  explanation  and  cause  of  this  plight  of  our  Court  of 
Appeals,  and  the  plight  of  whatever  it  implies,  appear  in  this :  "The 
"  abolition  of  the  forms  of  actions  a?id  pleadings  in  cases  at  com- 
"  mon  law."  Three-quarters,  if  indeed  not  a  greater  portion  of  all 
the  questions  carried  there  on  appeals,  grow  out  of  this  novel  way 
"  of  developing  the  real  points  of  the  controversy  at  the  trial;  "  or 
proposing  to  have  "  the  true  analysis  of  the  case  "  there,  instead  of 
having  this  scrutiny  applied  before  the  trial  —  as  by  the  old  method. 
If  we  are  right,  then  three-quarters  of  all  that  huge  mass  — the  cal- 
endar of  the  Court  of  Appeals  —  could  never  have  appeared  or  been 
raised  at  all,  in  the  given  case,  neither  in  the  Court  below  nor  above, 
had  this  supposed  analysis  been  compelled  to  be  done  by  the  liti- 
gants, in  the  first  instance,  before  the  trial.  Nothing  being  com- 
pelled, as  we  have  seen,  to  be  conceded  in  the  pleadings  so  called, 
or  any  points  settled,  even  when  these  are  ended,  the  party  holding 
the  affirmative  has,  at  every  step,  to  prove  each  material  particular. 
Although  the  fact  be  one  on  which  the  other  side  does  not  rely,  and 
touching  which  he  is  only  experimenting  or  taking  advantage  of 
the  other's  supposed  inability  to  make  proof  legally,  he  may  encoun- 
ter, besides  the  useless  delay  and  expense,  obstacles  which  enable 
his  antagonist  tO  raise  objections  and  take  his  exceptions,  more  or 
less  sound,  altogether  arising  out  of  matter  either  immaterial  or 
which  ought  not  to  be  permitted  to  be  disputed.  Hardly  anything 
is  ever  conceded  in  open  court.  Each  party  there  strives  to  try  to 
the  utmost  the  weakness  of  the  other.  Hence  it  is,  that  a  great  pro- 
portion of  the  exceptions  is  inevitably  of  this  nature,  on  which  the 
defeated  party  may  appeal,  as  he  does,  and  go  to  the  Court  of  Ap- 
peals, as  often  as  not,  successfully. 

These  questions  thus  raised  are  contested  on  a  set  of  facts,  bear- 
ing no  relation  to  the  essential  point  on  which  the  party  who  raises 
them  actually  relies,  or  on  which  he  ought  to  rely  —  which,  too, 
before  the  trial  in  good  faith  and  in  justice  ought  to  have  been 
confessed  or  conceded.  Every  lawyer  of  much  experience  knows 
of  very  numerous  cases  of  this  sort,  carried  to  the  Court  of  Appeals 
on  propositions  raised  at  the  trial,  which,  by  strict  right,  had  no 
relevancy  or  relation  to  the  real  point  of  contestation  between  the 
parties.  It  is  self-evident  that  the  materials  out  of  which  all  cases 
of  this  kind  arise,  would  at  once  have  been  swept  away,  disappear- 
ing compulsorily  at  every  step  in  the  process  of  analyzing  the  case, 


88  THE   CODE   OF   PROCEDURE. 

by  the  instrumentality  of  the  appropriate  logical  formulae,  if  used  in 
the  first  instance.  Of  course,  when  everything  on  both  sides  is  left 
comparatively  open  till  the  trial,  each  lawyer  then  raises,  and  is,  for 
the  fear  of  accidents  or  the  sake  of  victory,  obliged  to  raise  as  many 
points  as  he  can,  and  he  does  this  in  the  divers  ways  of  which  the 
state  of  the  case  on  the  trial  allows,  for  he  is  now  pleading  specially, 
what  he  could  more  securely  have  done  in  his  office,  and  doing  it 
under  the  most  perilous  disadvantages.  He  may  find  himself  not 
only  differing  from  his  antagonist  as  to  the  points  of  the  case,  but 
with  the  judge,  who,  by  this  method  of  the  Codifiers,  becomes  the 
sole  arbiter  of  this  scene  of  logic  —  who  may,  as  he  often  does, 
deem  the  essential  question  such  as  neither  of  the  lawyers  had  sup- 
posed, and  in  respect  of  which  neither  party  supposed  they  were 
litigating.  The  judge,  therefore,  instead  of  the  lawyers,  on  whom 
the  parties  relied,  settles  and  adjusts  the  points  as  he  himself  deems 
them  essential.  In  this  way,  questions  are  incorporated  in  the  case, 
through  the  agency  of  the  judge  himself,  which  neither  the  parties 
nor  their  lawyers  expected  to  raise,  and  which  otherwise  would 
never  have  been  raised.  Points  of  this  kind,  taken  at  the  trial,  as 
they  oftentimes  are,  by  dint  of  necessity  or  of  chance,  become  in- 
corporated in  the  bill  of  exceptions.  This  instrument,  therefore, 
becomes  the  substitute  for  Special  Pleading,  and  the  frequency,  as 
well  as  the  origin  of  it,  is  commensurate  with  the  relaxation  of  the 
rules  of  that  system.  The  office  it  now  performs  is  to  settle  and 
adjust  the  supposed  points  for  the  first  time  in  the  case,  and  to  place 
them  permanently  and  publicly  on  the  record.  The  choice  lies  be- 
tween general  pleading  with  this  hazardous  resort  to  the  bill  of 
exceptions  at  the  trial,  and  Special  Pleading  with  its  single  issue 
developed  beforehand  by  the  use  of  the  formulae,  and  presented  for 
trial.  The  bill  of  exceptions,  at  the  end  of  the  trial,  thus  does  what, 
in  the  first  instance,  the  form ul 33  do  at  the  beginning  of  the  contro- 
versy, *.  e.,  settle  what  it  is. 

The  difference  is,  that  this  analysis  made  on  the  trial,  and  on  a 
retrospective  examination  of  the  pleadings  at  large  together  with 
the  testimony,  produces  an  hundred-fold  more  points,  and,  more 
often  than  otherwise,  points  which  ought  to  have  been  treated  as 
immaterial  or  undisputed  matter,  and  which  would  have  been,  had 
the  litigants  been  compelled,  before  they  came  to  trial,  to  resolve 
their  controversy  and  sift  out  its  points  by  the  use  of  the  formula?. 


THE   CODE   OF   PROCEDURE.  89 

Indeed,  the  chief  use  of  the  trial  becomes  an  instrumentality  for  set- 
tling and  adjusting  the  supposed  essential  questions,  whose  legal 
effect  has  yet,  if  the  parties  do  not  acquiesce  in  the  opinion  of  a  sin- 
gle judge,  to  be  ascertained  in  banc  on  appeal.  The  value  of  the 
verdict  depends  still  on  the  fate  of  the  appeal.  If  the  litigants  can 
longer  endure  the  delay  and  expenditure  of  the  conflict,  the  litiga- 
tion here  just  begins  in  earnest  and  with  intelligence.  It  is  in  this 
way  that  this  sinister  scheme  of  postponing  everything  to  the  trial 
coaxes  or  compels  a  multitude  of  divers  points  in  almost  every  case. 
It  breeds  them  with  the  fecundity  of  the  rabbit. 

The  old  scheme,  supposing  its  rules  enforced,  could  allow  no  ques- 
tion of  fact  on  either  side  to  come  to  the  trial,  except  its  law  was 
either  acquiesced  in  by  the  parties,  or  it  had  been  determined  by 
the  judges  in  banc  on  demurrer.  More  than  one  question  of  fact 
could  not  appear,  without  leave  on  the  record.  With  this,  or  what 
it  was,  or  should  be,  the  judge  who  presided  at  the  trial,  had  noth- 
ing to  do,  except  what  his  duty  of  trying  it  and  the  conduct  of  the 
trial  imposed  on  him.  Nor  could  a  bill  of  exceptions  be  begotten, 
unless  it  was  touching  the  competency  of  the  testimony  or  the  steps 
taken  on  the  conduct  of  the  trial.  In  this  way  the  judge  acted,  in 
a  very  great  degree,  ministerially.  But  let  it  be  made  his  duty  and 
labor,  as  it  is  the  genius  of  this  reform,  to  settle  and  adjust  the  real 
questions  on  the  trial  in  a  logical  contest  over  the  case  with  the 
lawyers  of  the  litigants,  his  will,  his  reason  or  his  judgment  (call  it 
what  you  please )  is  absolutely  supreme.  It  is  a  contest,  in  which 
he  will  always  prove  the  victor.  The  lawyers  cease  to  be  the  mas- 
ters of  the  controversy  of  their  own  clients.  Their  responsibility, 
too,  ceases,  disappears,  is  merged  into  that  of  the  judge,  whose  de- 
cisions, as  they  happen  to  be  adverse  to  the  one  or  the  other  side, 
become  transformed  into  just  so  many  exceptions  or  propositions 
of  law  to  be  reviewed  on  appeal.  It  is  not  extravagant,  therefore, 
to  assume  that  at  least  three-fourths  of  the  questions  which  now  go 
to  the  Court  of  Appeals  could  never  have  appeared  there,  but  for 
this  novel  method  of  analyzing  the  case  at  the  trial. 

Nor  is  it  possible  to  hit  on  a  more  dangerous  or  unsatisfactory 
mode  "  of  developing  the  real  points  of  the  controversy."  It  must 
be  borne  in  mind  that  the  inclination  of  the  judge  undoubtedly  is, 
if  he  can,  to  stop  the  litigation.  It  is  natural  and  honorable  enough, 
confiding,  as  he  scrupulously  does,  in  his  own  judgment,  that  he 


90  THE   CODE   OF   PROCEDURE. 

should  deem  it  his  duty.  Of  course  the  lawyer  who  undertakes  by 
this  method  to  save  and  settle  his  points,  dealing  as  he  does  with  the 
judge  who  ought  to  have  no  part  or  responsibility  in  such  an  analy- 
sis, does  this  at  a  great  risk  and  disadvantage  to  his  client.  The 
case  is  new  to  the  judge,  and,  if  it  be  one  of  much  complexity,  act- 
ing as  he  does  on  the  urgency  of  a  public  trial,  there  is  extreme  ex- 
posure to  mistakes  or  misapprehensions  on  his  part. 

We  must  assume  that  he  is  infallible,  or  else,  as  oftentimes  hap- 
pens, that  the  bill  of  exceptions  is  framed  either  with  points  which 
the  lawyer  never  took  in  their  exact  form  or  sense,  or  that  these 
are  stated  with  qualifications,  omissions  or  variations  he  never  meant. 
Indeed,  if  not  absolutely  deprived  of  his  real  points,  he  finds  them 
so  emasculated,  or  transfigured,  that  they  are  become  doubtful,  or 
worthless.  Or  in  some  particulars  he  may  find  them  not  in  the  ex- 
act shape,  or  with  the  precise  formalities  they  should  be,  in  order 
to  be  available  on  appeal ;  for  he  will  be  met  there  with  nice  and 
subtle  precision,  technicalities,  worse  and  more  perilous  than  any  it 
were  possible  to  dream  of  in  Special  Pleading,  aye,  an  hundred-fold. 
Of  all  these  on  appeal  the  judges  take  advantage,  as  they  are  very 
apt  to  deem  it  their  duty  to  do,  and  affirm  the  judgment  sought  to 
be  corrected,  rather  than  hear  it  on  its  merits.  Of  these  pretexts 
of  non-conformity,  there  is  no  end,  where  there  is  no  criterion  but 
a  principle  and  the  mere  lust  of  interpreting  or  applying  it  to  the 
case  in  hand  for  the  sake  of  checking  or  discouraging  appeals  in  be- 
half of  public  policy  or  advantage.  Men  every  day  cruelly  lose, 
and  have  been  almost  every  day  these  twenty  years  cruelly  losing, 
their  property  and  rights,  because  of  some  supposed  failure  to  com- 
ply with  the  intricacies  of  some  supposed  principle  to  be  observed 
in  the  mode  of  saving  the  questions  and  presenting  them  on  appeal. 
Besides  these  obstacles,  the  expense,  labor,  uncertainty  and  respon- 
sibility of  recapitulating  and  shaping  whatever  has  taken  place  on 
the  trial,  no  matter  how  voluminous,  in  order  to  furnish  the  appel- 
late court  with  a  knowledge  of  the  questions  to  be  contested  on  re- 
view, are  enormous.  No  method  could  be  conceived  less  safe  or 
satisfactory — far  less  so  compared  with  reaching  the  same  object 
by  Special  Pleading  in  the  first  instance.  The  latter  method  is  less 
technical  by  very  much  —  far  less  over  nice  or  fastidious  —  less  ex- 
pensive, less  exposes  the  party  or  his  lawyer  to  refined,  capricious 
or  arbitrary  subtleties,  or  the  mischief  of  mistakes  or  of  ignorance 
or  incompetency,  or  the  risk  of  passion,  prejudice,  conceit,  etc. 


THE   CODE   OF    PROCEDURE.  91 

Besides,  suppose  the  trial  is  over,  and  the  real  point  of  the  con- 
troversy developed  by  this  analysis,  and  exhibited  in  the  bill  of 
exceptions,  the  party  defeated  has  as  yet  taken  only  the  opinion 
of  a  single  judge,  and  that  opinion  given  under  such  circumstances. 
Now  it  is  oppressive  to  the  citizen  that  this  single  judicial  opinion, 
given  on  this  urgency  of  a  public  trial,  should  be  conclusive  on  his 
rights  and  property,  so  far  as  the  law  of  his  case  is  concerned,  what- 
ever the  weight  which  the  verdict  should  have  on  a  point  of  fact. 
It  does,  however,  practically,  in  all  cases,  unless  the  party  finds 
himself,  in  addition  to  the  expenses  of  this  extraordinary  analy- 
sis at  the  trial,  able  to  bear  the  further  and  heavier  costs  of  set- 
tling the  bill  of  exceptions  and  appealing  first  to  the  Supreme  Court 
in  banc,  and  afterward  if  necessary,  to  the  Court  of  Appeals.  For 
each  of  these  steps  he  must  be  provided  with  sureties  for  the  judg- 
ment and  costs,  or,  without  an  undertaking  for  these,  the  judgment 
is  executed,  though  it  work  his  worldly  ruin,  or  though,  were  it 
reviewed,  it  should  appear  to  have  been  altogether  and  grossly 
erroneous.  Now  he  will  appeal  in  this  plight,  and  so  will  his  law- 
yer, if  he  be  in  earnest,  and  in  his  convictions  and  conduct  of  the 
cause  has  cared,  as  he  ought,  for  the  rights  of  his  client  who  has 
entrusted  them  to  his  care,  skill  and  vigilance.  If  he  be  a  man  of 
heart  and  head,  the  decision  of  a  single  .judge  at  the  trial  on  the  law 
of  his  case,  does  not  change  his  own  opinion  or  satisfy  his  own  con- 
victions. What  is  his  plight?  It  is  his  own  judgment,  carefully, 
deliberately  and  studiously  formed,  placed  in  a  scale  against  that  of 
a  single  judge  on  the  trial.  Afterward,  on  his  first  appeal,  he  finds 
this  same  judge  sitting  with  the  others  in  banc,  where  his  views 
at  the  trial  are  little  likely  to  be.  much  controverted,  particularly 
in  these  days  of  good  humor,  indifference  and  elective  affinities. 
Rightly  or  wrongly,  the  lawyer  will  regard  the  affirmance  of  the 
judgment,  at  this  stage  of  analyzing  the  case,  as  no  more  than  the 
repetition  of  the  same  opinion  he  met  with  upon  the  trial. 

He  appeals  to  the  Court  of  Appeals.  It  is  enough  to  say,  that 
there  he  may  find  out  too  late  and  remedilessly,  that  his  proposi- 
tions of  law  have  not  been  taken  in  accordance  with  some  principle, 
the  demands  or  subtleties  of  which  have  never  been  declared,  set- 
tled or  exemplified  in  formula),  so  that  a  compliance  in  point  of  form 
depends  upon  each  man's  own  experience,  construction  or  sagacity. 
The  modes  of  proceeding,  even  after  nearly  twenty  years  of  strug- 


92  THE   CODE   OF    PROCEDURE. 

gling  between  the  lawyers  and  the  judges,  in  taking  exceptions  and 
presenting  them  on  appeal,  have  not  as  yet  been  settled.  These 
modes  have  never  been  reduced  to  any  formulae.  There  is  nothing 
to  constrain  the  judges,  or  to  guide  the  lawyer  through  the  intricacies 
which  the  application  of  the  principle  involves,  and  no  means  to 
reduce  them  to  uniformity  or  safety. 

Little  injustice,  very  little,  is  done  in  the  administration  of  the 
law,  simply  because  men  do  not  understand  the  principles  of  natural 
justice.  The  world  over,  these  seem  substantially  understood. 
The  superiority  of  one  system  of  jurisprudence  over  another,  does 
not  turn  on  a  different  degree  of  consciousness  or  comprehension 
of  these  principles.  How  are  these  universal  principles  or  ideas  to 
be  carried  out  or  applied  in  the  business  of  litigation  to  secure  the 
justice  the  mind  conceives?  This  is  the.  task,  the  mighty  labor.  It 
is,  therefore,  the  means  by  which  the  law  is  to  be  practically  ap- 
plied in  the  transactions  of  men,  which  becomes  the  test  of  the 
superiority  of  a  legal  system  ;  or,  what  is  more  happily  expressed 
by  the  term,  the  administrative  part  of  the  law.  As  these  means  are 
more  or  less  perfect  or  efficient,  his  rights  of  person  or  property 
are  more  or  less  secured  to  the  citizen.  In  the  methods  devised  and 
adopted  to  effect  this  security  in  the  application  of  the  principles 
of  justice  to  this,  the  object  of  all  laio,  the  chiefest  and  most  indis- 
pensable element  is  that  these  methods  should  be  fixed  —  that  the 
judges,  to  whom  this  application  must  be  entrusted,  be  compelled, 
as  far  as  practicable,  to  act  ministerially ',  having  themselves  no 
power  to  change  or  vary  these  methods,  and  being  bound  to  a  strict 
observance  of  them,  as  much  as  the  litigants  or  their  lawyers. 
Once  let  these  modes  be  uncertain,  or  within  the  power  of  the  judge 
to  control  them,  and  the  rights  of  person  or  property  cannot  be 
said,  in  any  enlightened  sense,  to  be  protected  by  law,  meaning  a 
fixed  law.  The  excellence  of  our  English  or  American  jurispru- 
dence, we  have  always  supposed  to  exist,  lies,  not  in  any  distinction, 
or  marked  superiority  of  the  abstract  principles  on  which  it  is 
founded,  or  which  are  declared  and  stated  in  its  annals.  Its  vaunted 
excellence  has  rather  always  been  ascribed  to  the  supposed  supe- 
riority of  its  methods,  designed  for  applying  them  to  the  trans- 
actions of  the  people.  This  superiority  of  the  means  lies  in  their 
being  so  prescribed,  fixed,  certain,  foreordained  and  foreknown,  that 
they  are  above  and  beyond  the  control  of  the  judge,  whose  duty  as 


THE   CODE    OF   PROCEDURE.  93 

well  as  whose  power  is  circumscribed  or  limited  simply  to  the  task 
or  responsibility  of  taking  care  that  they  are  thoroughly  and  con- 
stantly observed. 

It  is  with  the  modes  of  proceeding  as  it  is  with  the  rules  of  evi- 
dence. What,  pray,  is  a  system  of  administrative  law  worth,  whose 
rules  of  evidence  do  not  as  yet  exist,  or  are  unsettled,  or  capable  of 
being  varied  with  the  particular  exigency?  Give  the  judge  the 
control  of  the  rules  of  evidence,  and  you  put  the  safety  of  the  citi- 
zen, or  litigant,  at  his  will.  The  rights  of  person -and  property  are 
at  his  mercy,  and  in  his  power.  It  is  equally  self-evident  to  him 
who  cares  to  reflect  on  the  subject,  that  the  danger  of  giving  the 
judge  the  power  to  change,  vary  or  dictate  the  modes  of  conducting 
the  steps  of  an  action  is  nearly,  if  not  quite  as  great,  aye !  perhaps 
greater,  than  to  give  him  that  of  changing  or  dictating  the  rules  of 
evidence.  In  other  words,  we  submit,  that  it  is  as  mischievous  or 
vitiating  to  any  system  of  administrative  justice,  to  allow  the  judge 
on  the  trial  to  control  the  pleadings,  or  issues  these  are  meant  to 
effect,  either  by  wholly  disregarding  them,  or  changing  or  adapting 
them  to  the  evidence,  as  to  give  him  the  power  of  prescribing  the 
rules  of  evidence  on  that  occasion,  according  to  some  supposed  ur- 
gency or  pretence  of  doing  justice.  The  mischiefs  of  the  one  act 
do  not  surpass  those  of  the  other,  and  each  is  equally  susceptible  of 
abuse,  equally  likely  to  attract  and  suit  the  countless  arts  the  re- 
morseless spirit  of  perjury  is  forever  contriving.  The  parties,  or 
their  lawyer's  who  represent  them,  are  no  more  exposed  in  the  one 
case  than  in  the  other.  No  system  can  be  consistent  with  our 
English  or  American  ideas  of  what  is  meant  by  the  certainty  and 
inflexibility  of  the  administrative  part  of  the  law,  or  of  what  it 
ought  to  be,  where  the  judge,  who  is  entrusted  with  its  application, 
may  determine  himself,  either  the  modes  of  proceeding  or  the  rules 
of  evidence.  Optima  est  lex  quce  minimum  relinquit  arbitriojudicis  ; 
optima  judex  qui  minimum  sibi. 

It  ii  these  fixed  rules  of  evidence  and  modes  of  proceeding,  pre- 
scribed and  adjusted  beforehand,  with  the  nature  of  which  the  judge 
has  nothing  to  do  but  to  see  them  strictly  observed,  which  has 
always  explained  and  manifested  the  vast  superiority  and  safety  of 
the  common  law  method  of  procedure.  Its  comparative  independ- 
ence on  judicial  power,  and  the  inflexible  certainty  these  fixed  rules 
and  modes  of  proceeding  have  assured  in  the  administration  of  the 


94  THE    CODE    OF   PROCEDURE. 

law,  have  always  been  regarded  and  vindicated  by  the  most  ex- 
perienced and  learned  jurists  and  statesmen,  as  the  essential  attri- 
butes of  our  English  and  American  jurisprudence, —  the  bulwark  of 
the  rights  of  person  and  property,  and,  therefore,  the  bulwark  of 
our  liberties,  politically.  These  ideas  are  fundamental,  and  have 
always  been  attached  to  our  common  law  modes  of  proceeding  in 
the  business  of  litigation.  So  far  as  the  issue  in  an  action  at  law  is 
concerned,  this  Special  Pleading  by  formulae,  prescribed  and  fixed 
for  the  use  of  the- litigant,  has  always  been  the  instrument  by  which 
parties  and  their  lawyers  were  compelled  themselves  to  sift  and 
analyze  their  controversy  and  resolve  it  logically,  till  the  decisive 
point  of  contestation  was  worked  out,  on  which  its  legal  desliny 
turned.  If  the  parties  and  their  lawyers  could  not  test  their  strife, 
this  way,  in  the  first  instance,  fitting  and  accommodating  it  to  the 
formulae,  the  government  provided  no  tribunal.  Nor  ought  it  to 
provide  one.  The  skill,  labor  and  responsibility  of  this  task  of 
searching  out  and  presenting  the  one  essential  issue  in  a  brief,  suc- 
cinct, logical  and  comely  shape  is  thrown,  where  it  should  always 
be,  upon  the  lawyers  of  the  litigants,  who,  it  is  supposed,  are 
trained  and  disciplined  for  this  very  object ;  who,  as  the  members 
of  a  learned  body,  and  being  the  officers  of  the  court,  are  supposed 
to  be  capable  of  conducting  scientifically  the  mutual  altercations  or 
statements  of  fact.  The  judge  the  government  provides,  as  the 
part  of  his  duty  is  to  hear  and  determine  the  issue  the  parties  had, 
in  this  way,  settled  and  framed  for  decision.  Government,  nowhere, 
assumes  to  provide  a  tribunal  to  aid  or  guide  the  lawyers  of  the 
parties  in  ascertaining  the  point  of  their  controversy,  or  one  tchose 
duty  it  is  to  find  it  out  if  in  fact  they  have  one  fit  to  he  tried,  or  to 
take  care  that  the  lawyers  have  hit  upon  the  real  one  or  the  best  one. 
It  is  enough  that  the  government  prescribes  fixed,  settled,  logical 
formulae,  by  the  use  of  which  these  learned  lawyers  can,  if  they  will 
take  the  pains  and  use  them  and  the  logic  they  compel  appropriately, 
ascertain  and  adjust  for  decision  the  point  of  contestation.  If  the 
parties  choose  to  litigate  at  all,  these  are  the  certain,  fixed  and  in- 
flexible instrumentalities,  by  which,  in  an  action  at  law,  they  must 
be  compelled  to  search  out,  on  the  skill  and  responsibility  of  their 
own  lawyers,  the  decisive  issue  and  present  it  with  the  logical  pre- 
cision, distinctness  and  beauty  of  which  it  is  susceptible  in  this 
scheme  of  ratiocination.     Science  never  causes  jnistakes  or  misap- 


THE   CODE   OF   PROCEDURE.  95 

prehensions  or  harm  of  any  kind.  It  will  most  swiftly  detect  and 
expose  them  the  rather.  Shall  government  never  be  able  to  sub- 
jugate this  vast  and  ceaseless  labor  of  litigation  to  the  yoke  of  an 
enlightened  and  logical  science,  for  fear  that,  sometimes,  the  right 
of  the  citizen  be  lost,  through  the  blunders  of  his  lawyer,  who  may 
mistake,  omit  or  misapply  its  rules  ?  Where  there  is  no  science, 
he  may  err  a  thousand-fold  more  likely,  though,  perhaps,  he  may 
fear  the  less  any  detection,  or  the  responsibility  to  his  client  or  the 
public.  Nor  do  you  secure  the  citizen  the  better  or  altogether  from 
the  mischiefs  of  failure,  or  of  loss,  through  the  errors  of  ignorance, 
or  of  negligence,  by  entrusting  the  solution  of  his  controversy  to  the 
judge,  instead  of  his  own  lawyer.  The  judge  is  nothing  but  another 
lawyer. 

Will  you  give  the  judge,  himself,  the  power,  without  much  of  any 
reference  to  the  views  of  either  party,  to  select  or  determine  what 
in  his  judgment  is  either  the  question  of  law  or  of  fact  to  be  decided  ? 
The  power  of  a  judge  over  the  course  and  result  of  a  trial  is  im- 
mense, let  the  most  sagacious  method  of  settling  the  question  you 
please  be  adopted.  But  where  you  give  him  the  choice  of  selecting 
it  retrospectively,  or,  in  other  words,  make  it  a  part  of  his  duty  to 
determine  on  the  trial  what  it  is,  neither  party  can  be  said,  in  any 
safe  or  accurate  sense,  to  be  ready,  except  provisionally  or  contin- 
gently. The  judge  may  assume  the  question  to  be  one,  which 
neither  of  them  supposed  it  to  be,  or  came  prepared  to  try.  The 
power,  then,  which  this  method  of  allowing  the  mutual  allegations 
to  be  made  at  large  confers  on  the  judge,  is  not  only  immense,  but 
also  self-evidently  too  flagrant  and  despotic.  Judicial  power,  of  its 
own  nature,  is  essentially  absolute  and  irresponsible.  It  is  like  that 
of  a  juror.     For  the  most  part,  it  is  exercised  in  obscurity. 

Unless  it  happens  to  be  a  matter  concerning  the  public,  or  in  which, 
for  some  unusual  reason,  the  public  take  an  interest,  the  controversy 
of  one  citizen  with  another  attracts,  if  any,  very  little  attention. 
Should  it  by  chance,  very  few  have  either  the  time,  or  the  care  and 
diligence,  to  examine  into  its  nature,  or  to  scrutinize  any  injustice, 
of  which  their  fellow-citizen  may  complain.  The  most  dangerous 
infirmities  of  the  judge  lie  this  side  of  any  open  or  gross  manifesta- 
tions of  corruption.  His  ignorance,  his  insolence,  passion,  prejudice, 
negligence,  indifference,  favoritisms,  subserviency,  have  but  little 
chance  of  being  publicly  criticised,  detected  or  punished.     He  is  not 


96  THE   CODE   OF   PROCEDURE. 

responsible  in  a  civil  suit  for  his  judicial  determination,  however 
erroneous  it  may  be,  or  however  malicious,  partial  or  corrupt  the 
motives  which  produce  it.  Of  necessity  this  irresponsibility  at- 
taches to  his  office  from  the  nature  of  the  power  he  exercises.  Man- 
kind have  suffered  no  worse  evils  than  those,  inflicted  in  the  shape 
or  disguise  of  judicial  power.  Review  the  chapter  on  the  adminis- 
tration of  justice  in  the  annals  of  civilization,  and  you  will  find  very 
little  comparatively  to  the  credit  of  the  judges,  their  intelligence, 
their  integrity  or  independence, —  but  little  to  the  honor  of  human 
nature.  Of  all  kinds,  judicial  power  ought  the  most  severely  to  be 
circumscribed,  and  its  exercise  guarded  or  constrained  by  the  se- 
verest arts  of  policy  and  patriotism. 

With  such  means  as  may  be  calculated  to  effect  such  an  object  in 
the  organization  of  the  courts,  we  have  on  this  occasion  nothing  to  do. 
Little  dependence,  in  our  judgment,  can  be  put  on  this  kind  of  se- 
curity. If  in  any  quarter  any  security  may  be  found,  most  likely 
it  lies  in  the  prescription  of  certain  fixed  modes  of  proceeding  and- 
their  inflexibility.  The  most  effectual,  and,  it  is  believed,  the  only 
one  of  much  value,  by  which  the  citizen  and,  therefore,  the  common- 
wealth, may  be  guarded  against  the  mischiefs  of  the  exercise'  of  this 
irresponsible  power,  consists  in  the  system  of  the  actions  at  law  and 
the  method,  nature  and  tendency  of  Special  Pleading.  It  is  mani- 
festly so,  for  the  reason,  that  when,  as  by  this  scheme,  the  essential 
point  for  decision  has  been  necessarily  evolved  by  the  alternate 
statements  of  the  litigants,  as  the  result  of  the  use  of  the  logical  for- 
mulae, the  judge,  whether  it  be  one  of  law  or  fact,  has  nothing  to  do 
with  the  adjusting  it  on  the  record  or  deciding  what  it  is.  This  has 
been  the  act  of  the  parties  and  their  own  lawyers,  who  are,  or  who 
ought  to  be,  responsible  for  this  question.  The  duty  or  business  of 
the  judge  is  simply  to  try  and  determine  what  has  been  thus  pub- 
licly adjusted  beforehand,  and,  at  last,  submitted  to  him  for  de- 
cision. 

We  think  no  one  can  help  seeing  (what  our  forefathers  did)  to 
what  a  vast  extent  the  power  of  a  judge  over  a  controversy  is  con- 
strained and  limited  by  taking  away  from  him,  by  this  method,  the 
opportunity,  the  labor  or  duty,  no  less  than  the  temptation,  of  se- 
lecting and  shaping  the  point  of  contestation  to  be  referred  to  him 
for  decision.  Let  this  much,  at  least,  be  left  to  the  parties  and  their 
lawyers.     Let  the  lawyers,  at  least,  become  responsible   to    their 


THE   CODE   OF  PEOCEDUEE.  9f 

clients  so  far  as  this  — that  they,  and  not  the  judge  before  whom 
it  is  to  be  tried,  resolve  and  adjust  the  point  of  their  controversy  — 
what  they  deem  the  essential  one,  on  which  they  are  willing  to  stake 
the  event  and  take  the  accountability  of  staking  it.  To  this  degree, 
at  least,  let  them  have  it  in  their  own  power  to  limit  the  duty  or 
control  of  the  judge  over  the  legal  fate  of  the  controversy  and  vin- 
dicate their  own  official  rights  and  responsibility.  Let  the  lawyers 
of  the  litigants  cease  to  be  puppets.  The  more  and  more  a  judge  is 
compelled  to  act  ministerially,  or  quasi-ministerially,  the  better  and 
safer  for  himself,  the  lawyer,  the  citizen  and  the  commonwealth  at 
large.  Special  Pleading,  if  practiced  as  it  now  is  in  England,  most 
obviously  tends  to  such  a  result.  The  advantage  of  it  operates  far 
beyond  the  immediate  effect  of  depriving  the  judge  of  the  control  of 
the  supposed  nature  of  the  question.  The  decisions  which  he  makes, 
and  which  it  is  his  duty  to  make,  are  classified  and  distributed,  in 
a  like  manner,  as  are  the  several  subjects  of  litigation  in  the  actions 
in  which  he  happens  to  make  them.  He  is  but  constantly  repeating, 
in  each  class,  those  which  belong  to  its  particular  action.  His  con- 
secutive judgments  consequently  not  only  limit  himself,  again  and 
again,  in  that  particular  class,  but  also  his  successors.  The  value  of 
precedents,  in  our  law  courts,  has  depended  chiefly  on  the  distinc- 
tions of  the  several  actions,  a  rigorous  observance  of  them,  and  the 
conformity  which  the  special  formulae  in  each  belonging  to  the  sys- 
tem compels.  These  precedents  have  always  been  the  more  distinct, 
useful  and  enlightening,  because,  by  this  method  they  are  suscepti- 
ble of  being  made  so,  and,  therefore,  more  useful  in  proportion  as 
its  rules  have  been  the  more  rigorously  enforced.  Where  the  com- 
mon law  classification  and  method  of  pleading  do  not  exist,  as  on 
the  Continent,  the  authority  of  precedents  (if  in  our  English  and 
American  sense  such  have  ever  been  acknowledged  there)  has  not, 
and  cannot,  in  truth,  exist  further  than  that  the  reasoning  of  one 
man  on  a  kindred  topic  mag  be  supposed  to  have  weight  and  con- 
sideration with  another.  The  system  of  precedents  which  has  so 
distinguished  the  law  courts,  and  is  by  most  believed  to  be  one  of  the 
chief  characteristics  of  its  superiority,  depends,  altogether  more  than 
we  are  apt  to  think,  on  this  distribution  of  the  subjects  of  litigation 
into  the  few  actions,  and  the  rigor  with  which  the  distinctions  on 
which  this  distribution  is  founded  are  enforced,  and  the  resolution 
of  the  decisive  point  in  each  action  by  the  use  of  the  special  for- 


98  THE   CODE   OF   PROCEDURE. 

mulae  appropriated  and  allotted  to  each.  No  human  wit  or  inge- 
nuity can  by  any  other  mode  make  one  decision  so  much  like 
another,  as  to  compel  the  judge  to  follow  it.  Few  men  compara- 
tively are  at  the  best  fitted  to  be  judges.  No  system  of  administer- 
ing the  law  can  be  a  good  one  (we  have  the  authority  of  Burke  for 
this  truth)  if  it  shall  require  men  of  extraordinary  ability,  or  integ- 
rity to  administer  it.  It  were  worthless  or  worse.  The  common 
law  method  of  procedure  it  is  believed  and  submitted,  is  immeas- 
urably better  fitted  than  any  other  scheme  ever  in  use  for  the 
average  grade  of  the  men  who  are  most  likely  to  be  judges.  It 
requires  —  if  its  rules  are  enforced  and  the  parties  themselves  com- 
pelled to  sift  and  resolve  the  facts  on  which  each  one  relies  in  the 
shape  of  these  public  and  prescribed  formulas  —  no  unusual  pitch  of 
capacity  or  purity  in  the  judges,  their  work  being  so  well  laid  out 
for  them  and  restricted  within  such  fixed  limits  as  palpably  to  ob- 
viate in  a  great  measure  the  danger  of  any  great  abuse  of  judicial 
power. 

£.,We  had  intended  to  call  attention  to  other  matters  bearing  on 
the  subject,  particularly  to  the  fact  (what  Justice  Selden  predicted) 
that  this  new  scheme  has  already  destroyed  the  equitable  action  in 
its  old  and  enlightened  sense.  There  is  no  longer  such  a  thing  as 
administering  an  equity  arising  out  of  the  facts  and  circumstances 
of  the  case  in  the  Court  of  Appeals ;  «or  rather  of  reviewing  there 
the  judgment  of  the  Supreme  Court  in  equity  by  a  reconsideration 
of  all  the  facts  and  circumstances  in  the  evidence,  as  well  as  of  the 
law  ;  or,  in  other  words,  on  the  pleadings  and  proofs.  Nor  can 
a  judgment  in  the  Supreme  Court,  in  such  a  case,  on  the  report  of 
a  referee  or  a  decision  of  a  single  judge  who  hears  the  cause  in  the 
first  instance,  be  reviewed  at  General  Term  on  the  pleadings  and 
proofs,  except  within  the  very  limited  sense,  scope  and  rules  of  the 
old  motion  in  an  action  at  law,  addressed  to  the  discretion  of  the 
Court,  for  a  new  trial,  because  the  verdict  was  against  the  weight 
of  evidence  ;  although,  to  get  the  almost  useless  opportunity  of  mak- 
ing it,  we  go  through  the  labors,  formalities,  expenses  and  delays 
of  an  appeal  under  section  348.  The  statement  of  facts  made  by  the 
referee  or  the  single  judge,  or  his  findings  as  they  are  called,  are 
treated,  in  both  courts  on  appeal,  as  substantially  conclusive  and 
final.  The  mode  of  reviewing  a  case  in  equity  is  the  same  as  that 
of  an  action  at  law,  or  of  strict  right ;  that  is,  by  a  case  and  excep- 


THE    CODE   OF   PEOCEDUEE.  99 

tions  in  the  law  sense  of  these  terms  heretofore  known  and  in  use 
for  reviewing  questions  at  law  on  a  writ  of  error.  This  writ  in  the 
name  and  shape  of  an  appeal  is  not  only  not  abolished,  but  has  be- 
come the  only  method  of  reviewing  a  judgment  either  at  law  or  in 
equity.  If  an  equity  case  can  only  be  reviewed  in  the  Supreme 
Court,  or  in  the  Court  of  Appeals,  on  a  case  and  exceptions  as  in  an 
action  at  law  and  not  on  the  pleadings  and  proofs  exactly  as  it  was 
before  the  Code,  then  in  substance  and  effect,  as  every  jurist  knows, 
there  is  equivalently  a  denial  of  any  appeal  whatever.  The  case 
and  exceptions  are  not  adapted  to,  and  cannot  be  adapted  to,  a  re- 
view of  an  equity  cause.  Nor  can  it  be  reduced  to  a  special  verdict 
and  reviewed  as  such,  except  in  mere  mockery  of  all  the  principles 
of  equitable  jurisprudence.  It  is'  indifferent  how  the  testimony  is 
taken  in  such  a  case,  but  to  its  very  nature  and  meaning  it  is  indis- 
pensable that  it  should  be  heard,  and  always  heard  and  reviewed 
upon  the  pleadings  and  pi^oofs,  as  before  the  Code  it  had  to  be. 
Yet  now,  notwithstanding  the  vastness  of  the  civil  rights  so  often 
at  stake  in  an  equity  action,  the  findings  of  a  single  judge  or  of  a 
referee  upon  the  facts  and  circumstances  in  evidence  before  him, 
substantially  as  upon  a  verdict,  are  conclusive  and  final  and  irrevo- 
cable. The  prediction  of  Justice  Selden  is  fulfilled.  We  had  in- 
tended to  call  attention  more  particularly  to  this  extinguishment  of 
any  further  enlightened  exercise  of  this  equitable  jurisdiction  as  dis- 
tinguishable from  that  of  law  ;  and  also  to  the  atrocious  consequen- 
ces, almost  in  every  quarter  apparent,  of  entrusting  a  referee  or  a 
single  judge  with  powers  which  never  before  in  the  annals  of  juris- 
prudence have  been  so  absolutely  confided  to  a  chancellor  or  any 
other  judicial  officer.  But  we  must  stop.  Besides,  we  are  told  we 
shall  have  our  labor  for  our  pains.  Very  well !  Such  observations 
as  we  have  been  making,  we  are  well  aware,  are  addressed  in  vain  to 
those  in  every  quarter  who  care  for  nothing  else  but  their  bread  and 
the  theatre,  —  nothing  else,  "neither  in  the  heaven  above,  the  earth 
"  beneath,  or  in  the  waters  under  the  earth."  Some  of  them  will 
also  be  addressed  in  vain  to  that  other  class  who  deem  the  total  de- 
pravity of  the  human  heart,  —  that  of  their  own  and  of  others,  —  so 
thoroughly  washed  out  by  the  blood  of  universal  suffrage,  that  we 
no  longer  will  be  in  any  danger  from  those  with  whom  we  choose 
to  entrust  the  implements  of  power.  We  think,  too,  that  the  obser- 
vations we  have  made  in  behalf  of  the  old  Common-law  method  of 


100  THE   CODE    OF   PROCEDURE. 

Procedure  will  be  likely  to  receive  very  little  consideration  from 
that  other  class  who  think  themselves  capable  of  improving  every- 
thing heretofore  done  in  the  world  of  nature  or  of  mind — who  self- 
complacently  assume : 

"  To  guard  a  title  that  was  rich  before, 
To  gild  refined  gold,  to  paint  the  lily,"  etc. 

who  could  cheerily  approach  the  decalogue  itself,  re-classify  the  du- 
ties or  sins  of  men,  and  put  their  own  in  place  of  the  Divine  Code. 

We  hope,  however,  notwithstanding  these  large  exceptions,  that 
there  are  very  many  who  will  allow  their  attention  to  be  arrested 
by  this  subject,  and  who  will  take  pains  to  search  out  its  merits. 
Let  them  be  assured,  it  is  a  matter  intrinsically  of  more  importance 
for  the  safety  and  happiness  of  the  people  of  this  commonwealth 
than  its  canals  or  any  other  of  its  great  staple  interests. 

Tear  out  of  our  Law  Reports  all  the  advantages  belonging  to  this 
system  of  actions  and  its  mode  of  pleading  by  means  of  formulae, — 
the  marvelous  triumph  of  the  art  of  legal  dialectics,  —  and  the  books 
are  comparatively  mere  rubbish  for  the  paper  mill.  The  men  of 
Buffalo,  — those  brave  and  stalwart  men  who  are  wielding  our  com- 
merce and  manufactures,  —  what  would  they  say,  were  a  bewildered 
Legislature  to  forbid  them  any  longer  those  wonderful  working  in- 
struments they  are  using  in  our  flouring  mills,  elevators,  rolling 
mills,  etc.;  and  compel  them  to  grind  our  wheat  with  the  pestle  and 
mortar ;  load  and  unload  the  grain  at  our  wharves  with  the  wheel- 
barrow and  shovel ;  and  to  mould  those  masses  of  iron  with  the 
tongs  and  the  hammer  ?  Such,  could  it  be  as  readily  seen,  is  the 
blind  error  we  have  committed  in  abolishing  "  TJie  forms  of  actions 
"  and  the  modes  of  pleading  in  cases  at  common  law"  Let  us,  at 
once,  and  magnanimously,  retrieve  the  misfortune. 


-'^< 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 

Renewed  books  are  subject  to  immediate  recall. 

JiH.22  J9fifi 

92 

JUL  ?4 -664  7H|  J 

,,,..    ,   |     . 

RECEIVED 

M«3  70 -3  PI 

it 

LOAN  DEPT, 

LD  21A-60m-10,'65                            rT   .General  Library 
(F7763sl0)476B                               University  of  California 

Berkeley 

U.C.  BERKELEY  LIBRARIES 


cosimsb^b 


